The Trump administration is urging key US federal agencies to stop protecting the rights of transgender people, according to a New York Times article. The Department of Health and Human Services is leading an effort to adopt a narrow interpretation of sex discrimination under US civil rights law that does not include “sexual orientation” or “gender identity.” This could roll back protections for transgender people at work, at school, and at the doctor’s office.
The federal government’s protection of transgender rights under major legislation such as Title VII (employment rights), Title IX (education rights) and the Affordable Care Act is largely rooted in interpretations adopted by the Obama administration. An inclusive interpretation of sex discrimination has been upheld by an increasing number of federal courts weighing in on the question.
The Trump administration’s proposal will likely be challenged in court. In the meantime, however, it threatens to do serious harm to transgender people who face discrimination that threatens their access to employment, housing, education, and healthcare. Its proposal that any definition of “sex” be restricted to “male” or “female” as indicated on birth certificates could also have a severe impact on intersex people whose sex characteristics may not neatly align as "male" or "female," and whose sex assigned at birth may not match their gender identity.
From attempts to exclude transgender soldiers from the military, to expanding permission for health care providers to deny care on religious or moral grounds, the administration has relentlessly undermined the protections from discrimination transgender people depend on under federal law. But there is a way forward.
Without delay, Congress should pass the Equality Act, which would amend federal legislation including the Civil Rights Act, Title VII, Title IX, and the Affordable Care Act to explicitly provide protection against discrimination on the basis of “sex” to explicitly include “sexual orientation and gender identity.” This would clarify for the courts and for all federal agencies that all Americans – including transgender people – have equal access to employment, education, health care, and other essential services.