President Trump has made no secret of his misunderstanding of transgender people — or of his disinterest in protecting their civil rights.
Last year, he declared that transgendered men and women could no longer serve openly in the armed services, claiming that they were a burden on the military. Also, the administration revoked an Obama-era rule that allowed students in federally-funded schools to use the restroom corresponding to the gender with which they identified.
Now Trump has said that his administration is considering a further policy change. His comments were vague, but reports said that the administration might narrowly define “sex,” for the purposes of anti-discrimination policies, as an unchanging condition determined at birth by a person’s genitalia. That would be foolish and inhumane.
Sex discrimination has long been prohibited by Title VII of the federal Civil Rights Act, which bars employers from discriminating against employees on the basis of sex, race, national origin and religion. Similarly, Title IX of the Education Amendments Act of 1972 bans discrimination on the basis of sex by any education program that receives federal funding. In recent years, courts and the Obama administration interpreted that to mean not just discrimination against men or women, but also discrimination against gay or transgender people. In recent years, federal trial courts in 20 states and appeals courts in the 1st, 3rd, 6th, 7th, 9th and 11th circuits have ruled in Title IX cases that gender discrimination is sex discrimination.
But the Trump administration, goaded on by the social conservatives in its base, has consistently resisted accepting that interpretation of the laws. In a memo last year, Atty. Gen. Jeff Sessions stated that the Title VII prohibition against sex discrimination did not encompass gender identity discrimination, and rescinded an Obama memo stating the opposite. And just Wednesday, the Justice Department filed a brief stating that a funeral home did not violate sex discrimination laws when it fired a male worker who was transitioning into a woman and intended to live and dress as a woman. The funeral home lost the case in lower courts and is now petitioning the U.S. Supreme Court to take it.
If the Trump administration ends up defining “sex” so narrowly, it will legitimize discrimination and encourage the continued mistreatment of transgender people, moving U.S. civil rights policy backward instead of forward. We can only hope that more enlightened voices in the administration will prevail.