Today, Explained - What the transgender memo means

Episode Date: October 23, 2018

A leaked Health and Human Services memo has left transgender Americans feeling like the Trump administration wants to define them out of existence. Dominic Holden from BuzzFeed News says the whole situation is much more complicated. Learn more about your ad choices. Visit podcastchoices.com/adchoices

The New York Times ran a story this weekend that put the entire transgender community on edge. The headline was, Transgender could be defined out of existence under Trump administration. The Times got a hold of a health and human services memo from the spring that reportedly seeks to strictly define gender at birth. You got boy parts or girl parts, and them's the breaks for life. And if there's any confusion, the government can work it out with some genetic testing. There is concern raised in this New York Times report

that this is the goal of the Trump administration. Dominic Holden is a politics reporter at BuzzFeed News. This piece had claimed that the administration was considering denying the very existence of transgender people. There's a few concerns about leaping to that conclusion, though. The first is that there are a number of other policies and federal laws that already recognize transgender people. The other one, though, is that we don't know if this memo from last spring represents basically the wish list of one person, or if this is something agreed upon across federal agencies, if there has been any decision made about adopting this, or if there is any sort of

formal policy or regulation forthcoming. Has the Trump administration, has Health and Human Services commented on this yet and said, look, here's what that memo means, by the way, it's from the spring, here's what's up now? Yes, sort of. A spokesperson for HHS on Monday issued a statement calling the New York Times report misleading, but HHS didn't actually provide any new information, and they said that they wouldn't comment on a leaked memo. It's important to understand that this is one memo from last spring from one agency, HHS, and it reportedly concerns Title IX, which is a statute concerning education. If there is going to be some sort of formal rulemaking

around Title IX, it's not going to be led by the Department of Health and Human Services. It's going to be led by the Education department. So it is a bit of a leap to suggest that one HHS memo leads to the entire administration adopting this policy. So would you say it's safe to say that if you're a trans person who's freaking out that the government might write you out of existence, you can take a deep breath? Or do trans people need to be really fearful right now? Trans people have been fearful for more than a year, as the Trump administration has consistently sought to roll back protections for them. But we don't know what the next step is. And while there's this idea that they could be written out of existence, let's keep in mind that trans people are recognized under a number of policies and laws that were not described anywhere in that New York Times report. memo from former President Barack Obama that protects federal employees and federal contractors from LGBT discrimination. Further, the Equal Employment Opportunity Commission actively argues

that LGBT workers are protected under Title VII, which bans discrimination on the basis of sex. There's also a policy still in effect at the Pentagon that protects transgender people who want to join the military. The Department of Labor enforces the executive order protecting transgender workers. So we have many existing policies that protect people on the basis of gender identity, and those can't be wiped away

simply because HHS writes a memo or even the education department follows through. Furthermore, there are federal laws passed by Congress. The Shepard-Byrd Hate Crimes Act protects transgender people on the basis of gender identity. The Violence Against Women's Act, also the Hate Crime Statistics Act, all recognize transgender people.

But most importantly, if there is some sort of regulation promulgated by the Trump administration, and I wouldn't be surprised if we saw something like this, ultimately the final arbiter is going to be federal courts. And they have overwhelmingly, in recent years, found that transgender people are protected. If this memo were to lead to some sort of new policy from HHS, what might it be? So the underlying history here is that after Congress passed the Affordable Care Act, HHS under Obama explored what the section on civil rights would do. And they developed a regulation under Section 1557 that says that the ban on sex discrimination protected transgender people from healthcare discrimination. This was challenged by

Texas and a number of other states, and a judge put that on hold. So once Trump came in, the Department of Health and Human Services said it was going to go back and revisit that anti-discrimination section and that regulation. We are expecting that HHS is going to publish their draft rule as soon as this month, but certainly by later this year we would expect it. And that's something that might have to be settled by the courts. If such a regulation were to be both introduced and then finalized as a rule, it seems all but certain that this would be challenged in federal court. And if it's challenged and there are all these court rulings upholding protections for trans people, do we know what the Trump administration is going to try and argue?

Well, yeah, the Trump administration has looked closely at a ruling by one judge, Reed O'Connor, in the Northern District of Texas. And he's a bit of an outlier in the judicial set. But he said, when he faces these sex discrimination claims from LGBT people, that sex only refers to a person's sex as identified at birth. And the Trump administration has then reversed its school guidance protecting transgender students and also stepped back from its health care protections for transgender people. And the fact that they have cited this court's ruling indicates that this is something that they've been considering for quite some time. Meanwhile, earlier this year, the Trump administration

introduced a new policy for transgender prisoners. And while it didn't deny their existence entirely, what it did say is that trans prisoners would first be housed and decisions would be made for them based on their biological sex. And what this indicates is that this has been the thinking of part of the Trump administration for quite some time. And the revelation of this memo in itself is not exactly shocking. President Trump said he'd be an ally to the LGBT community. How's that working out? That's next on Today Explained. We're looking at it. We have a lot of different concepts right now. They have a

lot of different things happening with respect to transgender right now. You know that as well as I do and we're looking at it very seriously. I'm protecting everybody. You know what I'm doing? I'm protecting everybody. I want to protect our country. Remember back in 2013 when that book Lean In came out? Maybe you read it. Maybe you listened to it as an audio book. Maybe you read an article about it or watched an interview about it. If you were sitting there wishing that there was like a podcast version of Lean In, you are in luck. It's hosted by Rachel Thomas, who is the co-founder along with Sheryl Sandberg and the president of Lean In, the not-for-profit organization and leanin.org. The podcast features intimate conversations with some of the world's most powerful women in Hollywood and politics and sports and business.

And you can find it, turns out, wherever you find your podcasts. Apple Podcasts, Stitcher. I know what you're thinking. It's probably called Lean In, but it's not. It's called Tilted. T-I-L-T-E-D. So what's the history of laws that protect transgender people? When did that start happening? Was it during the Obama

years? Well, it's important to know that there is no federal statute that explicitly protects transgender people from discrimination under federal civil rights law. But the Obama administration has taken many steps to interpret existing civil rights law to protect transgender people. There was a complaint, for instance, in Arcadia, California, when a student complained that he was not allowed to use the boys' restroom as a transgender boy. And ultimately, the Obama administration moved in, got a settlement with the school district in the transgender boy's favor. This was followed up by a ruling of the Equal Employment Opportunity Commission in April of 2012, where they found that a woman, a transgender woman, was not hired at ATF after she had come out. And these are both really key.

The first one, the student, concerns Title IX. The second one concerns Title VII. They deal with education and workplace discrimination. But more than anything, they address what the question of sex discrimination was. So here you have early on the Obama administration taking the side that sex discrimination covers gender identity. Going forward, in 2014, former Attorney General Eric Holder took the position that Title VII's ban on sex discrimination also covered gender identity discrimination. This was key because the Department of Justice, the Attorney General, they are essentially the core arbiter of what laws mean for the government.

So this was the beginning of a large push within the Obama administration to extend protections to transgender people wherever sex discrimination was already banned. There was sort of a cascade over the following years. One of the things that people might remember most clearly is that there was guidance issued by the Justice Department and Education Department in 2016, saying that transgender students could use facilities, including bathrooms and lockers, consistent with their gender identity. U.S. Departments of Justice and Education issued the directive in a formal letter to school districts. It does not impose new legal requirements. Instead, it cites Title IX's existing protections against sex discrimination that are tied to federal funding. There was the policy allowing transgender people to serve in the military. There was the interpretation of the Affordable Care Act

to say that transgender people were protected from discrimination. There was a plan to count LGBT people in the 2020 census. And the White House even appointed an LGBT liaison who was specifically the conduit between the White House and all of these LGBT advocates who were working on these issues. Which I guess brings us to President Trump, who, when he was campaigning, said he'd be, you know, an ally, a friend to the LGBT community. I will do everything in my power to protect our LGBTQ citizens from the violence and oppression of a hateful foreign ideology. Believe me.

Did he not know what the T stood for? I think he did. I mean, Trump certainly knew what the T stood for. And when he was asked about it, like states like North Carolina that had a ban on trans people using certain bathrooms, he basically said this should be a states issue. When asked about Caitlyn Jenner. If Caitlyn Jenner were to walk into Trump Tower and want to use the bathroom, you would be fine with her using any bathroom she chooses. That is correct. What we have to understand is that Trump, sort of by nature of politics, needs to represent his base and the people who are in his administration.

And the posts in agencies have been populated by a lot of figures from the evangelical right. They bring their agenda with them. And Trump knows that this is an issue that resonates well with people. So it's not terribly surprising that we look at Trump now and see him playing on many of the interests of his base about what gender norms should be and poo-pooing those people who he thinks can get him a round of applause with his own crowd. So what has he done? What has President Trump and his administration done since he entered office in January 2017 to undo the extensions that the Obama administration offered. Trump essentially took aim at LGBT rights as created under the Obama administration from his first month in office. You might recall that Attorney General Jeff Sessions and Education

Secretary Betsy DeVos rescinded guidance based on Title IX that protected transgender students from discrimination and said that they could use facilities like bathrooms in line with their gender identity. So that had been scotched. You may remember that one morning, a few months after Trump took office, he tweeted that he was going to ban transgender people from the military entirely, even though they had already been allowed to come out in the military and there was a pending deadline to let them start joining. But that's not working out, right? Just to be clear. No, they've been unable to do it because they have faced four lawsuits. And in all of those cases, federal judges have issued injunctions blocking the Trump administration

from putting the ban in place. As you were. Continue. There are rules under the Affordable Care Act which protect transgender people in health care. Trump has sought to rescind those and rewrite them. There was a plan to count LGBT people in the census. That has been withdrawn. There's no longer an LGBT liaison in the White House. HHS has also developed a religious liberty office, and many people believe that what that allows healthcare workers to do is to choose not to provide certain medical services to transgender people. Meanwhile, there's a regulation forthcoming from the Labor Department

that builds on an earlier policy that says that there is a religious exemption for federal contractors if they are accused of discrimination. Collectively, this shows an interest in advancing religious liberty so that when there are LGBT protections written into law and policy, that there is essentially a loophole or an escape hatch for people to claim that they were doing it in the interest of their religious beliefs or their faith and avoid punishment. I'm surprised that when a Health and Human Services memo leaks over the weekend and the New York Times publishes a story, everyone hits the panic button and loses their shit because I imagine the transgender community and anyone who feels allied with it, which is a whole boatload of people in this country, hears about this kind of thing. They fear the worst. One of the things that's a little bit strange about it, though, is if you think about it, there are so many concrete protections that have already been reversed. It is a little bit curious that people are up in arms over a memo from last spring that doesn't represent any formal decision or action. Why is that? Is it because the New York Times was the outlet that it came from?

They're a very big, important outlet, and their reporting tends to be meticulous. Is it because they claimed that the Trump administration is trying to write them out of existence completely? Perhaps. Any regulatory process can't actually do that, so it's not clear if the report was inaccurate or overstated its consequences, or if people have reached some sort of tipping point. If people are paying attention to the way LGBT rights are being rolled back under Trump, and paying attention to the fact that what Trump is doing is different than what he said on the campaign trail, that's good. But what's not good is if we look at one memo from last spring and overstate what it does. LGBT people's lives are on the line, quite literally, in cases of health care protection and workplace protections. And so we should be careful to state exactly what is happening

and what we know to be true. And in terms of this New York Times story, it doesn't tell us what is going to happen. We shouldn't overstate what the Trump administration is doing because the protections that exist can and should be used by the people that they were written for. Dominic Holden covers politics for BuzzFeed News. I'm Sean Ramos for him.

This is Today Explained. Caitlin Tiffany, Ashley Carmen, you're joining me from the Why'd You Push That Button podcast from The Verge and the Vox Media Podcast Network. It's a show that explores the decisions technology forces us to make. Many decisions we don't even think about anymore. We just start making them. You guys spend the time to think about them, and you're just launching your third season. What can people expect from season three?

We just released our first episode about deleting your tweets so we kind of look into why people delete their tweets or don't and whether that is something we should all do for our sanity for our online existence all of that yeah so we talked to max reed who used to be like the editor-in-chief of Gawker. Yeah. And he like really got into some of like the mechanics of like how Gamergate worked and how it was how like digging up old tweets became really codified

as like a super effective harassment and like life derailment tactic. And then we talked to Brianna Wu who was like very much at the heart of Gamergate. So that was kind of the focus of the episode. It's Gamergate.

It's dark. It's a dark season premiere. Because technology is scary. It is. But you know what? We're figuring it out. That's why Caitlin and I do this thing. Have you two deleted your tweets?

No. I don't delete my tweets because I'm really obsessed with myself. And I need to have a very thorough record of everything I've ever said and felt. Fair. Ashley? I delete my tweets because I had Twitter when I was in college and I have a great fear that I said something stupid, not like incriminating, just literally dumb. Like, oh my God, I got 10 mosquito bites today, one of which is on my belly button. What? Is that a real tweet example of yours? That is a real tweet. That is a real tweet. I'm going to find that.

And for more information on all the tweets that you should delete, people should listen to Why'd You Push That Button. Just summon it wherever you find podcasts.