WASHINGTON (NBC) — The Trump administration may be considering redefining gender as an unchangable condition determined solely by a person’s biology, according to a leaked memo draft obtained by The New York Times.
The U.S. Department of Health and Human Services argued in the drafted memo, which has not been seen by NBC News, that the government needs to adopt a uniformed definition of gender “on a biological basis that is clear, grounded in science, objective and administrable,” the Times reported.
The memo has allegedly been circulating since last spring, according to the Times, and would be subject to change.
If enacted as written in the memo, the legal definition of sex under Title IX, which prevents gender discrimination, would be determined as male or female based on the genitals a person was born with as listed on the person’s birth certificate. Disputes would have to be settled using genetic testing, according to the Times.
“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth. The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence,” the Times reported the memo as saying.
In response to the Times’ story, a Health and Human Services spokesperson said, “We do not comment on alleged leaked documents.”
During the Obama administration, the legal concept of gender was less stringent in federal programs and allowed individuals for the most part to choose how they identified, rather than a person’s sex being determined by what they were assigned at birth.
If the memo were to become a policy, protections and federal recognition for the approximately 1.4 million people in America who recognize themselves as a gender other than what they were assigned at birth would be eliminated, according to the Times.
Activists in the LGBTQ community and those who identify as transgender posted on social media about the fears the memo triggered. Many began using the hashtag “#WontBeErased” in condemning the drafted memo.
“Make no mistake, trans people are under direct attack from the Trump administration — but we #WontBeErased. We’re here. You can’t define us out of existence,” wrote the National Center for Transgender Equality, which said it planned to rally in front of the White House on Monday.
Lambda Legal, a national legal organization advocating for LGBTQ rights, wrote, “Transgender folks: You are valid. You matter. You are loved. We will not stop fighting for your rights and you #WontBeErased by this heartless administration. #TransRightsAreHumanRights.”
Chase Strangio, an attorney with the American Civil Liberties Union, wrote on Twitter, “I know folks are scared and hurt. So am I. We are working to stop this and we will never give up. The courts are scary. The administration is scary. This world is scary. We still have tools. I am here. I see your beautiful humanity. And I love you.”
This not the first time the Trump administration has challenged protections for transgender and non-binary Americans.
On March 23, President Donald Trump said he would endorse a plan by Defense Secretary Jim Mattis to restrict the military service of transgender people. The policy replaced an outright ban on transgender service members that Trump announced last year on Twitter, citing concern over military focus and medical costs.
A U.S. court later ruled the administration could not enforce the updated policy. A court had already ruled that Trump could not enforce his initial proposal of an outright ban, and that decision was appealed to a higher court.
The Trump administration also scrapped a policy instated by the Obama administration that sided with transgender students in their choice of school bathrooms.