For me, the conversation about the leaked Health and Human Services memo indicating the Administration’s plans to deploy an anti-trans definition of gender across several federal agencies exposes key misunderstandings about trans people, legal systems, and resistance. If you’re interested in my take, you can listen to my interview on the Citations Needed podcast, or read the op-ed I published in Truthout the day after the memo was leaked, which is below. I also want to highly recommend this article by Christoph Hanssmann which helps put the idea of genetically testing gender into perspective, and this article by Gabriel Arkles that argues that anti-trans attacks also harm non-trans women and LGBQ people and knocks down religious liberty justifications for anti-trans reforms.
Right-Wing Fantasies About Gender Are Killing Trans People
The Trump administration’s latest attack on trans people is the most terrifying yet: The Health and Human Services Department is now planning to establish a retrograde definition of gender aimed at making whatever gender is assigned at birth unchangeable, according to a memo leaked to The New York Times.
For the last 16 years, I have been involved with efforts to reduce the enforcement of gender categories on trans people and everyone. When I started doing this work in 2002, many state and local agencies and federal administrative regimes that keep gender marker data about people didn’t have clear policies, or didn’t have any policy at all, about whether someone could change their gender marker, or even what evidence or documentation the gender marker on someone’s records or ID is based on. As trans legal organizations began to emerge in the early 2000s, we worked to identify ways to reduce the harms trans people face because of gender norm enforcement.
As a poverty lawyer working at the Sylvia Rivera Law Project, I saw this harm in my clients’ lives. One client was kicked out of school when she and her friend showed up dressed as women, coming out to their peers and teachers. Another client had her welfare benefits terminated when she showed up at her mandatory “workfare” assignment because the supervisor marked her as absent, saying she wasn’t “work ready” if she dressed as a woman. Another client needed placement in a domestic violence shelter but the shelters would not admit her because she was trans. One client was convicted on a drug charge and wanted to serve part of it in the drug treatment program, but the program would not take him because he was trans.
Homeless women clients complained they couldn’t go into the homeless shelter system because they would be placed at a men’s intake shelter where they knew they would be targeted with violence. Because they could not go into an intake shelter, they would not be able to get into other housing services available after that initial stage.
Many clients were trying to get ID that had a gender marker that matched their life and would not expose them as trans every time they had to show it to a prospective employer or a cop. Many clients were having their medical needs rejected by Medicaid because of their gender.
Overall, my clients were being kept out of services they needed, blocked from employment, and exposed to greater danger of discrimination and violence because of the ways that gender markers get recorded on our IDs and used to divide people up in sex-segregated facilities.
Over the last two decades, advocates have worked hard to change these policies and have won some victories. In some cities, homeless shelters now have policies that say they have to let trans women into women’s shelters. In some places, Department of Motor Vehicles offices have adopted policies so that a trans person does not have to prove anything about their genitals to get their ID changed on a state-issued ID, such as a driver’s license. Many universities have created all-gender bathrooms so that people can use the bathroom without being harassed because someone perceives them to be in the “wrong” place. In some jurisdictions, Medicaid exclusions of trans health care have been removed.
Most of these improvements are just at their very beginnings. In many cities with trans-friendly policies about shelter placement, staff still deny trans women access because they do not know the policies or do not want to enforce them. And most cities and counties still don’t have clear policies about trans access to shelters or other social services or any training for staff about not discriminating against trans people. ID policies have improved in some places, regarding some pieces of identification, but IDs with appropriate gender markers are still out of reach for many people because they require doctors’ letters and many trans people do not have access to health care or to a friendly doctor. Thirty-one percent of trans people in the US lack access to any regular health care. Trans women are still, with very few exceptions, placed in men’s prisons and jails.
Trans people are disproportionately poor, especially trans people of color. The poorer you are, the more likely your survival is at the mercy of bureaucrats and low-level staff in prisons, shelters, hospitals, group homes and welfare offices who can make decisions about your gender regardless of what the law says or does not say. Being poor also means you are less likely to have access to a state ID or medical documentation to fight these determinations. It would be misleading to say that trans advocates have even scratched the surface of these problems in the last two decades of escalating work on these policies and practices. We have made beginnings, and we have reduced some harms to some people who live in some places, but the most vulnerable people in our communities—people of color, poor people, people with disabilities, people in prisons and immigrants—still face life-shortening enforcement of the gender binary through all kinds of administrative systems.
And now comes the news that the Trump administration is working on a strategy to establish a retrograde definition of gender aimed at making whatever gender is assigned at birth unchangeable. The Health and Human Services Department’s leaked memo leaves a lot of questions unanswered, and there will be many battles ahead of us as we work to fight any policies the agency attempts to roll out. However, even the rumors of such a policy will be enough to stir increased transphobic action by low-level staff and bureaucrats at shelters, welfare offices, DMVs, schools and other places where people have the power to make trans peoples’ lives difficult and dangerous.
For poor people subject to the whims of hostile systems, there is always a big gap between how systems are supposed to work on paper, and what happens in real life. When Trump was elected, even before his administration had actually changed any immigration policies or practices, my immigration lawyer friends reported that their clients were getting increased levels of bad treatment and harsh rulings in detention centers and immigration courts. When transphobia gets bolstered by signals from the federal government, low-level enforcers of gender norms feel even more license to humiliate and exclude trans people. We should assume that conditions are already worse than they were, in material terms, for vulnerable trans people, before the memo was leaked to The New York Times.
The Trump administration’s plans to redefine gender for administrative purposes are a serious threat to trans people. In areas where there has not been a clear definition or policy regarding how gender is established or changed, these plans could create a norm that keeps trans people out of basic services and makes us more vulnerable to discrimination and violence. In areas where advocacy has led to improved policies, it could roll those back. Trans people could see renewed and enhanced barriers in health care, education, employment, ID and other key areas.
The administration’s attack should be understood not only as an attack on trans people, which it is, but also as part of a broader, terrifying approach to race, gender and authority that characterizes the entire presidency. This memo shows how the administration aims to enhance the significance of legal gender and establish narrow definitions to enforce it, which is part of a broader agenda to roll back feminist reforms. One of the most fundamental assertions of feminism is that the meaning of gender categories is socially constructed and enforced through norms, and that gender assignments should not determine how and what people can be, and do.
The Health and Human Services memo leak is aligned with a broader patriarchal and authoritarian ideology about enforcing a gendered worldview that constrains everyone, especially those most touched by state systems that target and control the lives of poor people and people of color. This new move dovetails with the administration’s work to embolden and expand resources to the military, police and immigration enforcement. All of this strengthens the violent enforcement of race, gender and class hierarchies in our lives. All of them will directly result in increased sexual and gender violence in the lives of the poorest people.
Many people feel terrified of the continuing rollout of the administration’s policies. We fear for ourselves and our loved ones. Just voting, or sending money to organizations we hope will win lawsuits against the administration, feels ineffective, slow and too passive for many of us. Watching it all unfold in the headlines and feeling helpless is driving a lot of people into depression and desperation. Now is the time to help each other out with the basic necessities that the government is more and more effectively eliminating, and to support everyone who is caught in the crosshairs of the expanded targeting. Now is the time to start and join effective mutual aid projects that do these two things.
What does mutual aid look like at this time? If we know trans women are being sent to men’s prisons, and all trans prisoners are vulnerable to violence, medical neglect and isolation, it looks like becoming pen pals with a trans prisoner through the lists provided by Black and Pink’s prison pen pal program. Becoming pen pals with a prisoner can reduce the likelihood they will be targeted, help them have emotional support through the targeting, and help them plan and find resources for when they are released. If we know the administration’s policies will further exclude trans people from homeless shelters and housing programs, we can work to create community housing-sharing programs. We can form groups that plan housing stays for trans people coming out of prison or aging out of foster care, to help people transition to stable housing as they find work or get benefits access in order to help address trans homelessness. Mutual aid can also include accompaniment programs so that people don’t have to go to court or doctor’s appointment or on public transportation alone. We can create child care shares, bail funds, ride services for people visiting prisoners and volunteer chores services for people who are sick or disabled.
We are in a very desperate time. Government agencies have always enforced laws and policies in ways that have endangered marginalized groups, but the Trump administration is ramping this up on all fronts. Many people have felt powerless, watching the Kavanaugh confirmation to the Supreme Court, the passing of the outrageous defense budget, the ongoing attacks on immigrants and imprisonment of migrant children, pipeline expansion and more. It is especially important in these moments to connect to what we can do, in our immediate surroundings, to support the people most harmed by these developments, and to strengthen community ties and fight isolation by figuring out problems and meeting needs together. Trump’s attacks are not slowing down, and we all have skin in the game. This is the moment to turn our fear and rage into immediate action to support the survival of everyone in our communities—including trans people—whose existence is threatened.