More than half a million transgender people could lose protection under proposed amendment to federal law

Late last month, the New York Times leaked a memo from the Trump administration defining sex as a genetic condition defined by one’s genitals at birth, a proposed change to federal law experts say is unlikely to take away legal protections for transgenders in California.

But they also say that narrowing the definition of sex could have broader, more insidious impacts on transgender communities across the U.S.

“The danger is not the memo itself, but how it might redefine the whole narrative around gender,” said Nancy Scheper-Hughes, professor emerita in the Department of Anthropology at Stanford University.

The memo suggested defining the word “sex” under Title IX, a federal law that prohibits sex-based discrimination in schools, as “a person’s status as male or female based on immutable biological traits identifiable by or before birth.” This definition would exclude more than 92,000 transgender adults in California.

“Trump is denying generations of studies in Europe, and research here at Stanford,” Scheper-Hughes said.

But, thanks to federalism, federal statutes are what legal experts call a “legal floor” on which states, cities, and even schools districts, are free to build. California already has non-discrimination laws equivalent to Title IX that explicitly protect gender identity.

“In California our state law is very robust in protecting trans folks,” said Melanie Rowen, Associate Director for the Public Interest and Public Sector Program at the University of California, Berkeley, School of Law. One local example: in 2013, the Berkeley Unified School District enacted a policy requiring schools to accept a student’s preferred gender identity, pronouns, and name, regardless of their legal name and gender assignment.

Portland, Maine residents carry the rainbow flag down Congress Street during the annual Pride parade. Photo Credit: Mercedes Mehling

“This memo has no legal impact on them,” said Taylor Brown, Law Fellow at Lambda Legal, a national legal non-profit organization advancing LGBTQ rights.

But Berkeley and California laws do not reflect national norms.

A 2015 report by the Transgender Law Center, the largest trans-led legal organization in the U.S., found that 40 states had gender identity-related policies considered “hostile” in areas like non-discrimination, safe schools, and health and safety. Close to half the transgender population of the United States currently lives in such states, according to the report.

Brown, herself transgender, lives in Georgia, where sexual orientation and gender identity are not covered by state discrimination laws. “The danger is very real to people who don’t have those analogous state civil rights protections,” she said.

The document released by the Times is a legal memo, meaning that it is not an entrenched law just yet. But it does the federal government’s position on gender and, importantly, can be used by local, district and federal courts when interpreting the law.

“I think of courts who are looking for interpretations or guidance from the government in terms of interpreting statutes. That memo could very much be what they use,” said Brown. If that were to be the case, more than 686,000 transgender individuals could lose protection under Title IX.

For courts to rule to adopt the memo’s definition of “sex” would mark a departure from a recent trend in the judiciary to broaden the meaning of Title IX and Title VII, which protects against discrimination in the workplace, to include gender identity and sexual orientation. Cases like Zarda v. Altitude Express and EEOC v. R.G. & G.R. Harris Funeral Homes established such precedents.

“It may be that the Trump administration is signalling that it would like the Supreme Court to take those cases and make a decision,” said Catherine Albiston, Professor of Law and associate professor in Sociology studies at UC Berkeley.

Both Zarda and Harris were petitioned to appear before the Supreme Court, which will have to decide whether or not to take them on its docket[BY WHEN WILL THEY BE DECIDING?]. With the recent appointments of Neil Gorsuch and Brett Kavanaugh on the bench, some argue that Trump is hoping the Court will adopt a narrower definition of sex.

“I predict that the Supreme Court is going to rule against us on both of these issues if it takes the cases now,” said Elizabeth Kristen, senior staff attorney and director of the Gender Equity & LGBT Rights Program at Legal Aid at Work, a non-profit involved in the litigation process for Zarda and Harris.

“We got so many emails from trans students who are scared,” said Brown. “They’re already dealing with such high rates of discrimination at school, and they see this coming from their president.”

“It just put us on the fast track,” said Billy Curtis, director of UC Berkeley’s Gender Equity Resource Center.