What the Trumped-Up Definition of Gender Could Mean for Trans and Intersex People

Matt Burnside, a film production major who identifies as a transgender man. Photo courtesy of Matt Burnside

Single-sex schools, sports teams, and the bathroom are some of the places that may be forced to disregard gender-fluid identities if the Trump administration succeeds in changing the legal definition of gender, basing it on the genitalia present at birth, according to the New York Times.

“The [Department of Health and Human Services]’s proposal definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with,” according to the unreleased memo discussed in the New York Times. As of now, no formal actions have been set in motion.

“People snapped into action as soon as this happened. If they tried to actually put anything into place, people are going to file lawsuits all over the place and there are different lines of defense that people are going to jump into before anything goes into effect,” said  Charlie Arrowood, the director of name and gender recognition at Transcend Legal, a company that assists transgender individuals with obtaining equal treatment socially, medically, and legally.  

Though the legal definition of gender has not yet changed, some trans individuals fear their identity will not be recognized and their rights will be taken away.

“My identity won’t be affirmed and it would make everyday life a lot harder. I would still be considered and referred to as female no matter how far along I am into my transition. Everything that is already difficult for trans people would become even harder,” said Matt Burnside, a film production major who identifies as a transgender man.

Currently, under Title IX, transgender students are protected from sex-based discrimination. That means, at school, their expressed gender identity and preferred pronouns must be honored, and they are also granted access to the restroom that reflects their personal gender identity, according to the National Center for Transgender Equality.

Should the memo become law, students might only be able to participate in activities that reflect the gender constructs that were assigned to them at birth. Men’s or women’s sports teams might have to disallow transgender students to join the team that best reflects their internal sense of gender if their external genitalia says otherwise, according to the New York Times.

This memo would be a significant step back from Obama-era policies that shielded transgender citizens from discrimination within places like schools that follow federal codes, said Burnside.

“Trump’s definition of sex also affects those who are intersex, which is something else to be considered if the government definition of sex is solely determined by genitalia,” said Burnside.

It is unclear how the administration’s ambition to conclusively and permanently classify people as male or female would affect people who are born intersex or with ambiguous genitalia that is neither clearly a penis or vagina. Under the desire to classify people as binary,  they will be left without a place or “category” in society, Burnside fears.

The current proposal doesn’t address people with differing genetics and hormones and secondary sex characteristics. “People making these policies that don’t understand the issues,” said Arrowood.

A 2016 letter from the Department of Education once defined transgender students as “individuals whose gender identity is different from the sex they were assigned at birth,” articulating a difference between one’s genitalia and one’s intrinsic sense of gender identity.

“Removal of terms, especially formal and correct ones, are reminiscent of fear campaigns in communist countries. It’s to keep the American public from knowing the truth. Transgender means identifying as a gender different than the one assigned to you at birth,” said Melody Carey, a junior theater and mathematics major who identifies as a transgender woman. Carey is also the current president of Chapman’s Queer Straight Alliance (QSA).

Transgender students are not alone in their aversion to the new proposal, with some claiming that Trump’s memo is misinformed and revealing an ignorance of biology.

The memo “doesn’t really even make sense,” said Ian Barnard, director of Chapman’s LGBTQ Studies program. “The memo, itself, shows a complete failure to even understand what’s going on with gender in our society.”

Gender is an arbitrary concept, Barnard said. “Having your gender imposed on you at birth by someone else, because babies don’t have a choice, is very violent,” Barnard said.

The resculpting of gender in the binary way the Trump administration is proposing would also dismantle decades of activism, Barnard said.

“It’s pretty horrific they’re trying to undo years of work recognizing transgender rights, transgender identity, non-binary identity, intersex identity,” said Barnard.

Burnside agreed. The memo, he said, “felt like another blow to the trans community and another means of invalidating people for no reason.”

Advocates also fear that denying people the right to their personal gender expression will result in more hate crimes and violence.

Murder rates among the transgender community have spiked higher each year, with 2017 recording at least 29 killings of transgender Americans, according to the Human Rights Campaign.

Students already feel an unwelcoming chill.

“The effect I see is subtle, I see it in my trans and queer friends that are afraid to stand up for themselves and their pronouns, hold their partner’s hand, wear clothes they want to. It’s fear, it’s terror, it’s no way to live,” said Natalie Pendergraft, a sophomore history major.

“It doesn’t matter how long it takes for the actual legislation to go through. I think as soon as [Trump’s mindset] has been stated, it’s established as a change in culture. It’s definitely a regression. I think it validates people who do share these hateful ideas,” said Prabhnoor Kaur, a junior screenwriting and art history major who identifies as queer[FSA9].

At Chapman University, gender-inclusive policies outline a “respect for all and an understanding of individual differences,” including “sex, gender identity, gender expression,” and sexual orientation.

The university says it has developed its own gender-inclusive policies across campus for students and faculty, including accommodations for gender-inclusive housing and equal access to non-conforming facilities, like the bathroom or locker rooms.

Because the university has set its own policy for gender-inclusivity, Chapman will not be affected by this proposal, if it is passed into law and will continue to follow its own code of conduct.