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Opinion

Trump's Trans Erasure Rule Explained

October 29, 2018

I know there is a lot of confusion about exactly what this "Trump Administration Erases Trans People" thing is. This is my breakdown of what we can expect to happen if the proposed rule changes to define gender as birth-genitals, binary, and fixed go through. I'm trying to be as jargon-free as possible, but there is a lot packed in here. Happy to answer any questions about technical points/etc, and feel free to share with friends and colleagues.


Context

The leaked memo originates from the Department of Health and Human Services, which is one of 4 federal departments that have a role in enforcing Title IX, along with Education, Labor, and Justice. The memo is trying to get the other 3 departments to sign onto a uniform interpretation of sex/gender as being unchangeable and based on original birth certificate/birth assignment and to use that interpretation moving forward wherever issues/cases relating to Title IX come up, as well as wherever the Affordable Care Act Section 1557 (the non-discrimination section) applies.


Impacts

  1. All discrimination cases under jurisdiction of any of those 4 departments based on transgender status (and, potentially sexual orientation -- depends a lot on a lot of things), will most likely get dismissed or ruled against.
  2. All programs and activities that any of those 4 departments fund are vulnerable to having funding cut or discontinued if they are pro-trans and, likely, pro-LGB. And also can apply very widely in the health system -- for example, HHS could tell Kaiser that they won't be able to administer Medicare part C plans (or be reimbursed for Medicare A/B services) if they use any federal dollars on transition-related care. The scope of impact is truly staggering, and the rate at which these programs falls away depends entirely on how doggedly the political appointees at HHS pursue their agenda.
  3. State governments who choose to enact similar policies in their own departments (especially DMV/sec of state/departments of vital statistics -- think issuing IDs and birth certificates) can do so without risk of DOJ intervention. This can affect wide swath of state funding, including potentially Medicaid programs in the 20-some states whose Medicaid programs cover transition-related care already; the ID issue is lower-hanging fruit.
  4. Unclear -- if there will be spillover to State Department re: federal ID/passports (or if they might just do their own separate policy saying the same thing later) and Social Security Administration. DHS not directly impacted, but they're already aggressive enough without really needing things to get written down; but, a similar explicit policy from them could potentially (further) jeopardize safety of a large number of trans immigrants.


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Next Steps

The rule has yet to be formally proposed, and once it is, there will be public comment period, then review period, then final rule issued. With the last two HHS proposed rules around trans health, they just steamrolled the process, so it's unlikely that active organizing around the public comments will change their minds, but is still important to do to lodge records, build paper trail, and fight despair.


Recommendations

  1. Every trans person who can get their name and gender marker on their ID updated should do it, if not already done. Get a passport if you don't have one. Double check all your expiration dates. See ID change guides here and here. Reminder: the language for gender marker changes on federal documents is "appropriate clinical treatment" -- does not need to specify what kind/how long/etc (details in links).
  2. Every ally who has trans friends and every trans person who has mental/financial resources should check in with folks to see if they need support getting their paperwork updated (helping fill out forms; moral support while filling out forms and turning them in; financial support for filing and copies).
  3. Remember all your regular self-care practices and then use them, for real for real. Managing the mental health impacts of something like this is no joke. Be especially careful about isolating right now.
  4. I'm so very open to hearing other recommendations -- there are certainly other things I'm mulling, but don't want to be any more alarmist than strictly warranted. :)

[Note from TheBody: This article was originally published by PWN-USA on Oct. 26, 2018. We have cross-posted it with their permission.]

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This article was provided by Positive Women's Network of the United States of America. Visit PWN-USA's website to find out more about their activities and publications.
 

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