Reasons Why You Shouldn't Freak Out (Yet) Over the Trump Transgender Memo

Contributing Editor
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Understandably, many transgender and gender-nonconforming people and their cisgender allies freaked out the morning of Oct. 21 when The New York Times dropped the headline "'Transgender' Could Be Defined Out of Existence Under Trump Administration."

Based on a memo that was leaked out of the federal office of Health and Human Services (HHS), the article read, "The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth, the most drastic move yet in a government-wide effort to roll back recognition and protections of transgender people under federal civil rights law."

The news might have been particularly upsetting for trans people living with HIV, wondering what this latest Trump administration attack on LGBTQ people and health care might mean for them down the line.

"There's definitely a minority stress impact" from these revelations, says Sasha Buchert, a staff attorney (who happens to be transgender) at Lambda Legal. "The calls to the Trans Lifeline go way up because the psychological effect of knowing that your government is attacking you is pretty horrible."

Having said that, though, Buchert and other experts say that, for now, trans people should, if not exactly relax, then take a deep breath. For one thing, says Buchert, what was proposed in the leaked memo is far from active policy -- and the moment the Trump administration were to make it policy, it would almost certainly be immediately challenged in federal court by several parties and likely ordered frozen by a judge pending further legal proceedings. And the other good news is that, even with Trump stacking the federal courts with right-wing judges, in recent years the overwhelming majority of federal judges have ruled in favor of trans protections. That is, they have concurred with the Obama administration's guidance that trans people are protected under the "sex discrimination" premise of Title VII, the federal civil rights law.

"There would definitely be legal challenges, and Lambda would definitely be a part of those," says Scott Schoettes, Lambda Legal's HIV project director (who is himself openly HIV positive).

In addition, notes Buchert, trans protections are already written into policies at several federal agencies. If you want a deep dive on this, listen to Vox's brief podcast explainer on "What the transgender memo means."

Now, just to entertain the worst-case scenario, if the policy did go into effect, in terms of its impact on trans folks living with or at risk for HIV, the biggest loss might be federal agencies such as HHS or the Centers for Disease Control and Prevention (CDC) refusing to recognize trans people in their HIV prevention messaging, programming, and data collection. CDC website pages acknowledging that HIV disproportionately affects transgender people -- women, particularly -- might disappear. The federal government would no longer be cueing state and local health departments and other entities to address HIV proactively and sensitively in the trans community as it did in the Obama era and to some extent still does.

"If the federal government stops funding programs for HIV education and prevention for trans people specifically, that could have a devastating effect," says Buchert.

Another question is whether the policy could be used against the current part of the Affordable Care Act (ACA or Obamacare) that says that health providers cannot discriminate against patients based on sexual orientation or gender identity. (Twelve states have their own laws prohibiting such discrimination in health care.)

Related: Your Vote, Your Voice, Your Weapon: Fight Back for Trans and GNC Americans

"We can't predict whether this would be used as something to dismantle that clause in the ACA," says Cecilia Chung of the Transgender Law Center. But if it were, said Schoettes, "potentially someone trying to get care could be discriminated against based on their gender identity, and there would be no more means to address the discrimination."

In fact, in late December 2016, the conservative federal judge Reed O'Connor of Texas blocked the federal government from enforcing the sex nondiscrimination part of ACA -- a ruling that Trump and Jeff Sessions' Justice Department did not appeal. However, trans individuals can still bring their own cases through the courts. (Those who think they might have such a case should contact Lambda's Help Desk.)

If the policy were to go into effect, experts say, trans-specific health needs such as hormone therapy or gender reassignment surgery might be denied. The policy would not affect HIV-related needs. "You can't deny someone health care because they're living with HIV," says Schoettes. "And we're not seeing anyone denied HIV-related care because they're transgender."

But again, importantly, all this is a big if. Right now, it seems, the biggest impact of the proposed policy on trans people might be the horrible feeling of being targeted for discrimination -- and used as pawns in a pre-midterms political football game. It's not the first such attack by the Trump administration, which has already rescinded Obama-era rules for schools on bathroom policy and continues to try to keep trans recruits out of the military, even though courts have struck down this effort.

That's why, now more than ever, says Chung, cisgender people must stand up for trans people -- not just personally, but politically, including by voting for trans-affirming candidates at the polls on Nov. 6. "Trans people have friends and family, including Republicans, who have to challenge this bigotry," she says. "The message is more powerful when allies stand with us, so the administration sees that we're not just a minority group."

And, she says, trans folks must band together like never before. "This is an opportunity for us to unify our base and also to partner with the intersex community, which this proposed policy also threatens."

It's also a time for individual trans folks who may be feeling anxious and vulnerable to reach out for connection and support, she says. For those in places with no nearby trans group to join, Chung suggests searching for virtual communities in one's area on Facebook. And again, there is always the Trans Lifeline.

Chung says she is confident that the trans community will withstand this latest threat. "Trans people have always been under attack," she says. "This doesn't change much of that dynamic -- but it reminds us that we're resilient, and we'll survive."