Potential Changes To The Legal Definition Of ‘Sex’ Add To The Many Challenges Of Being Trans

The U.S. Department of Health and Human Services is allegedly trying to limit the definition of “sex” to what a person is assigned to at birth. Trans advocates say it will make violence and discrimination worse, and could push some to transition before the law changes.

By Alexia PuenteNovember 20, 2018 10:42 am

The New York Times recently reported that the Trump administration plans to “redefine transgender out of existence.”

The story references a U.S. Department of Health and Human Services memo that was leaked last month that proposed to establish a legal definition of sex under Title IX. That’s the federal law that prohibits sex-based discrimination in federally-funded educational programs.

The draft proposal would define a person’s “sex” as the one assigned at birth. On this Transgender Day of Remembrance, an international observation honoring the memory of those whose lives were lost in acts of anti-transgender violence, Texas Standard looks at the impact the proposed legal change could have on transgender students.

Emily Bogue attends Texas State and is the president of the student group Transcend. Bogue says one reason the leaked memo is concerning is that many public school districts already don’t know how to accommodate transgender students. They’re often restricted from participating in athletics or using the locker room of their choice.

“It’s unaffirming and reinforces these transphobic systems that view trans people as invalid or as liars or as anything other than the gender that they identify as,” Bogue says.

This new definition of sex under Title IX could also put these students at risk. A representative from the nonprofit research group RTI told the Daily Beast in 2017 that the group found, in its research, that LGBTQ students are “two to three times more likely” to experience assault, compared to non-LGBTQ students. Bogue has heard of cases in which a transgender girl who is forced to use a boy’s locker room is left vulnerable to severe bullying.

“Under this interpretation of Title IX, that girl, then, doesn’t have recourse to go to the school and say, “Hey, my Title IX rights are being violated,” Bogue says.

LGBTQ activist Paige Schilt says transgender discrimination prevents these students from receiving an adequate education. GLSEN is an organization working to create safe and inclusive schools. In a recent national survey, it found that that many LGBTQ students avoid school because they’re afraid for their safety, and often times they have no one to turn to.

“The connection between learning outcomes and discrimination is not really complicated or abstract. It’s very hard to concentrate in class if you feel that you’re being threatened or devalued, or you can’t take care of your basic needs,” Schilt says.

The negative experiences of transgender youth can cause negative mental health problems, which can continue into their adult lives. Research has shown that violence and harassment toward individuals in the broader LGBTQ community increase their risk for self-harming behaviors. Emily Bogue is familiar with these statistics.

“When you stifle trans people’s right to express themselves, and when you fail to affirm their gender identities, those depression rates spike, those rates of violence spike, those rates of self-harm and suicide spike. This is actively harmful, this is a thing that hurts people and this is a thing that will get people hurt,” Bogue says.

Texas State student and Transcend secretary Niccolò Dessi says for those reasons, many transgender college students are already worried about their future. Now, Dessi says the leaked draft from the U.S. Department of Health and Human Services is cause for even more concern, especially about things like employment and medical services for transgender individuals. Dessi says that’s leading some to consider rushing to have sex reassignment surgery, which creates an added level of mental and financial stress.

“We’re kind of frenzied to be like, ‘Let’s get these legal name changes, let’s get these surgeries done before we can’t,’” Dessi says.

That panic isn’t unwarranted – that’s because violence and bullying against LGBTQ people isn’t limited to schools. Overall, the transgender community faces among the highest rates of violence and systemic discrimination of any group in the United States, according to the National Center for Transgender Equality. In 2017, the Human Rights Campaign found that at least 29 transgender people in the U.S. died from violent acts committed against them by “acquaintances, partners and strangers,” the organization says in a blog post. Deaths have been on the rise the last few years, and that was the most ever recorded.

“It’s always been hard for trans people facing discrimination, but now there’s sort of a validity to it coming from the government, even without there being a concrete policy in place,” Dessi says.

Schilt says Tuesday’s Transgender Day of Remembrance is meaningful because it creates a moment for people to come together and connect, and recognize each other’s humanity and worth as people.

“A lot of the activism and response to the Trump memo has been around this #WontBeErased, and I think that’s part of the legacy of Transgender Day of Remembrance already, is to not just let these lives that have been lost, often times lives of trans women of color, to just fade from the historical record and be erased,” Schilt says.

Bogue wants people to remember that trans people have existed before the government gave them recognition – and they will continue to exist. She says it’s important to remember how the elders of the transgender community fought without any protections, and that legislation cannot force them out of existence.

“It is important to remember that the work that we need to do is going to make people uncomfortable. It is how we secure our rights and how we secure our protection and how we assert to the world, ‘Hey, now you have to listen to us. We exist and we refuse to let you forget about us,'” Bogue says.

Bogue hopes that during this Trans Day of Remembrance, and moving forward, those in the trans community will continue to draw strength from one another, as well as through their supporters and allies, as they continue to do the work necessary to protect their human rights.