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Trump administration considering ‘different concepts’ regarding transgender rights, with some pushing back internally

Reports say the Trump administration is considering defining gender solely by a person's biological framework. Here are some of the changes in approach. (Video: Adriana Usero/The Washington Post)

President Trump said Monday that his administration is “seriously” considering changing the way it treats transgender people under the law, confirming what administration officials describe as a debate about whether to define a person’s sex as a biological fact determined at birth.

The Health and Human Services Department has been pushing for the change, a fresh and direct aim at transgender rights, hoping other departments embrace that approach for sweeping impact. But it is unclear whether there is support for the broader effort or whether the regulation would be issued at all, as some in the administration are pushing back.

Such a change seeks to negate claims that gender identity — rather than biological gender — can be used for protection under federal civil rights laws such as Title IX, which bans sex discrimination. If such regulations were adopted, the federal government would consider a transgender person’s sex to be what is determined at birth rather than the gender with which they identify.

Conservatives have long argued that such federal protections were never meant to include gender identity, and they say that rules meant to help transgender people can wind up giving cover to, say, men who want to invade women’s bathrooms.

The Trump administration has acted to systematically roll back those efforts

But the Education Department, which implements civil rights law regarding sex discrimination in the nation’s schools and colleges, is not eager to follow HHS’s lead, and the Justice Department is deferring to HHS, according to administration officials.

It’s unclear what the Education Department’s specific concerns are, but for many years, Secretary Betsy DeVos has privately supported lesbian, gay, bisexual and transgender rights and has been reluctant to dial back their protections.

At stake now is the legal status of some 1.4 million American adults who define their gender as different from their biological sex at birth. While gay and lesbian Americans have seen broad acceptance in recent years, rights for transgender people are far more polarizing.

The Obama administration acted in myriad ways to enshrine legal rights for transgender people into federal regulations and policy, and the Trump administration has acted to systematically roll back those efforts.

Trump confirmed Monday that a policy change toward transgender people was under consideration but said that there is more than one way to approach the issue. He was not specific about the potential alternatives.

“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,” Trump said. “And we’re looking at it very seriously.”

Asked about his promise to protect LGBT people, he replied: “You know what I’m doing? I’m protecting everybody.”

HHS urged officials to avoid using the word ‘transgender’ in budget documents

Discussion about a new administration approach — first reported Sunday in the New York Times — was immediately condemned by the transgender and gay rights community, which views it as an existential threat after years of halting legal and cultural progress toward acceptance. It was cheered by social conservatives who argue the Obama administration’s work to expand legal rights in this area was legally and morally misguided.

On a range of matters, the Trump administration has worked to dial back rights for transgender people put into place during the Obama years. It moved to ban transgender people from serving in the military and said it would assign transgender inmates to prisons based on the sex on their birth certificate.

HHS urged officials to avoid using the word “transgender” in budget documents last year, and the Justice Department released a memo asserting that federal employment nondiscrimination law does not protect transgender people.

The Education and Justice departments last year repealed an Obama-era memo that directed federally funded schools to allow transgender students to use the bathrooms that aligned with their gender identity, even if it conflicted with the sex on their birth certificate.

But at the time, DeVos aides made it clear that she was not fully supportive of the change, having previously spoken up for gay and transgender friends and associates. She once facilitated a transgender woman’s use of the women’s restroom at a Michigan GOP call center, for example, and wrote a letter on behalf of a gay couple seeking to adopt a baby.

The Education Department is expected to release a proposed rule dealing with allegations of sex discrimination at colleges, including sexual assault. The question of transgender rights could be addressed as part of that proposal.

At HHS, the issue is being driven by Roger Severino, the agency’s director of civil rights, who has long been critical of the Obama administration’s expansion of transgender rights.

The specific question HHS is wrestling with was sparked by passage of the Affordable Care Act, which for the first time brought civil rights protection into federal health-care law, prohibiting discrimination based on sex. It left it to HHS to write rules implementing the provision.

The Obama administration wrote a regulation that included gender identity as a prohibited form of sexual discrimination. A federal judge stopped the government from enforcing the rule, a decision at odds with most other courts. The Trump administration has been considering how to replace it.

Reaction to the debate within the administration was swift, with transgender activists hosting a White House rally on Monday and a sharp increase in calls to a transgender crisis hotline.

Nicola Van Kuilenburg, 47, of Frederick, Md., whose 18-year-old transgender son is away at college, helped carry eight posters emblazoned with the names of approximately 700 young people who could be impacted by a policy change.

“These are the children they would be hurting,” Van Kuilenburg said. “This particular memo is especially cruel because it is an attempt to erase my son’s identity — to erase all these kids’ identities. My son is who he is.”

Hundreds of marchers chanted “Trans rights are human rights” and “We will not be erased.” Ian S. Thompson, from the American Civil Liberties Union, said the Trump administration has been unleashing an “unending series of attacks on the most vulnerable among us.”

Calls to the Trans Lifeline crisis hotline, based in Oakland, Calif., more than doubled in the 24 hours following the news — with 434 calls by midafternoon Monday, up from 212 on an average Monday.

“People are really feeling the weight of isolation,” said Sam Ames, Trans Lifeline’s executive director.

Transgender people only recently have seen a degree of public acceptance and political advocacy on their behalf. Just 11 years ago, leaders in the gay rights community backed employment nondiscrimination legislation that excluded transgender workers, hoping that it would pass if limited to discrimination based on sexual orientation. It failed anyway.

In 2013, the American Psychiatric Association’s diagnostic bible adopted “gender dysphoria” to describe the symptoms and distress experienced by transgender people, eliminating the older designation of “gender identity disorder.” This change in the Diagnostic and Statistical Manual marked a turning point in the treatment of people who felt they were in the wrong body, and a growing recognition that such feelings were not a mental illness.

Then in 2014, transgender actor Laverne Cox appeared on the cover of Time magazine beside the headline “The Transgender Tipping Point: America’s Next Civil Rights Frontier.” A year later, Caitlyn Jenner was on the cover of Vanity Fair, describing her journey from Olympic athlete to transgender icon.

Moves toward transgender acceptance in recent years have buoyed many liberals, who say they are an overdue effort to stamp out discrimination. But conservatives say they are encouraged by the conversation underway now in the Trump administration.

“Throughout history, the word sex only had one definition, and you didn’t have to put it into words,” said Bruce Hausknecht, judicial analyst for Focus on the Family, an advocacy group for social conservatives. He said that most people with “gender confusion” will “reorient themselves back” to their biological sex at birth but that the growing appearance of transgender people in the media makes it more difficult for conservatives to make that case.

“Primarily, this is a political issue by a vocal minority that receives a lot of attention by the media and Hollywood, and not so much by mainstream middle America,” he said.

But others said the Trump regulation, if issued, would be damaging.

“What this would do is exclude transgender people from all the civil rights protections that everyone else takes for granted,” said Joshua Block, a senior staff attorney with the ACLU’s LGBT project. Eventually, he said, the matter is likely to be resolved by the Supreme Court.

Moriah Balingit, Lenny Bernstein, Amy Goldstein, Marissa Lang and Felicia Sonmez contributed to this report.

Correction: An earlier version of this article mistakenly omitted the word “most” from Bruce Hausknecht’s statement that most people with “gender confusion” will “reorient themselves back” to their biological sex at birth. The article has been updated.