The courts still have final say on transgender rights, no matter how federal agencies choose to define sex.
That’s the fact many LGBT advocacy groups are pointing out in the wake of an explosive memo, leaked from the Department of Health and Human Services and published by The New York Times, which urged other agencies to define sex as “male or female based on immutable biological traits,” recorded “on a person’s birth certificate, as originally issued” unless genetic testing can prove otherwise.
As the Times reported, the HHS has asked the Departments of Education, Justice, and Labor to use that same definition in their own regulations on sex discrimination, which is prohibited by federal civil rights laws, like Title VII and Title IX.
But in a sense, those hypothetical regulations would only formalize the Trump administration’s current stance on transgender rights—namely, that they don’t really exist.
The Department of Education is already reportedly dismissing many Title IX complaints from transgender students and the Department of Justice filed a brief to the Supreme Court just this Wednesday in a high-profile employment discrimination case (authored by Solicitor General Noel Francisco) arguing that “Title VII… does not apply to discrimination against an individual based on his or her gender identity.”
In the near term, then, the HHS proposal won’t really make the Trump administration any more opposed to transgender protections than it already is.
“It’s purely political,” Shannon Minter, legal director for the National Center for Lesbian Rights told The Daily Beast of the memo. “It has no practical impact except for sending a message and encouraging discrimination.”
The worst-case scenario—if that proposed HHS language gets instituted, then spreads across agencies—would be that the Trump administration would have official internal regulations in place precluding it from defending transgender rights in areas like schools and public employment.
But the Trump administration has already long been backing down from the Obama White House’s positions on those same issues.
“Even though this could make things more difficult—and is clearly a sign that this administration is not on the side of the LGBT community—ultimately, as (fourth Chief Justice) John Marshall said 200 years ago, it’s the provision of the courts to say what the law is,” Greg Nevins, the workplace fairness program strategist for Lambda Legal, told The Daily Beast.
In the case of transgender rights, multiple federal courts have already concluded that existing federal civil rights legislation protects transgender people on the basis of existing sex discrimination bans.
In fact, the Equal Employment Opportunity Commission, the federal agency tasked with litigating these laws among private employers, currently states on its website that “EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation,” even in cases where LGBT people aren’t protected under state or local legislation.
And because the EEOC is a semi-independent federal agency, that stance would likely only change if the Supreme Court ruled definitively that transgender people are not covered under existing sex discrimination bans. (The EEOC did not comment to The Daily Beast when asked about any potential impacts of the HHS memo.)
“Basically, the Trump administration can’t just order the EEOC to adopt its definition of sex,” Minter explained. “They have their own authority over that.”
The differing stances of the Trump administration and the EEOC on transgender rights are already coming to a head, mere days after the HHS memo leaked.
As Bloomberg Law reported Wednesday, the Justice Department just weighed in via a brief on the case of Aimee Stephens, a transgender woman who was fired from her funeral home job after coming out, and who won her case at the circuit level with the EEOC’s aid. The case would now head to the Supreme Court if it is granted review.
The DOJ, as previously noted, argued in its brief that Title VII should not apply to Stephens in direct contradiction to the EEOC’s position on the issue.
But the DOJ also, as Bloomberg Law reported, asked the Supreme Court to first weigh in on the question of sexual orientation bias before considering the Stephens case.
What matters most now, LGBT leaders say, is not what new language the Trump administration is concocting, but how the current Supreme Court will handle the federal-level precedents that have been piling up in favor of transgender plaintiffs.
“No administrative rules, such as those the administration is reportedly considering, can override all the federal court rulings that have found anti-trans discrimination to be a form of sex discrimination that violates federal law,” wrote ACLU attorney James Esseks in a blog post on the Stephens case.
According to Nevins, most courts are not likely to be confused as to why the Department of Justice or other federal agencies might suddenly start ignoring those rulings.
“Courts are not stupid,” he told The Daily Beast. “They know exactly what’s going on. Courts are not confused about why this is suddenly the position of the Department of Justice.”
Indeed, if the Trump administration’s feelings about transgender people weren’t clear before, Minter says, they certainly are now that the HHS memo has leaked.
“It’s one of the most hateful proposals that I have ever seen,” he told The Daily Beast. “It is breathtaking in its hostility and hatefulness.”