The Impacts of the Shifting Definition of Sex Under the Law
November 04, 2018
While transgender people have existed since the dawn of time, the last decade has seen an increasing spotlight on the community and transgender people’s right to recognition and protection. While this has taken on many different angles, federal and state administrations have come under scrutiny in the last few weeks for choices to exclude transgender people from everyday protections. In Kansas, a lawsuit was recently filed against the state actors who enforce policies that do not allow transgender people to amend their birth certificates to recognize their gender identity. At the federal level, a leaked memo obtained by the New York Times showed that the Department of Health and Human Services is working to redefine nondiscrimination provisions based on sex under Title IX to exclude transgender people.
What do these government choices mean in real life?
In Kansas, the choice not to allow transgender people to update their birth certificates means that any time a transgender person has to use their birth certificate, their transgender identity will be forcibly disclosed without their consent. So, for example, when enrolling in school, applying for or accepting a job offer, or simply trying to get other identity documents, the sex designated on a person’s birth certificate will not match their gender identity. This disclosure matters, because sadly, discrimination and harassment against transgender people is still extremely common across the world, including in the United States, and even in Kansas. According to the US Transgender Survey, a 2015 survey of over 27,000 transgender people, among those who had shown an ID with a name or gender that did not match their gender presentation, 25% reported being verbally harassed, 16% were denied services or benefits, 9% were asked to leave a location or establishment, and 2% were assaulted or attacked. Among those who had ever held a job, one in six (16%) reported having lost at least one job because of their gender identity or expression. Therefore the choice of when, how, and to whom to disclose one’s gender identity is extremely sensitive and laden with risks.
At the Federal level, the memo, if it were to be enforced, would play out in the context of nondiscrimination laws. Title IX prohibits discrimination based on sex in education. “Sex” in this context has been interpreted by courts and the Obama Administration to include gender identity, thus prohibiting discrimination in education based on a person’s transgender status. In the past, this included guidance that has since been rescinded that would have required transgender students to be treated in accordance with their gender identity in all sex-segregated school spaces and activities. If these new proposed guidelines from the memo are codified, they would legally re-define sex as what was listed on a person’s original birth certificate, which could not be changed unless rebutted by “reliable genetic evidence.” This would mean that all transgender students would be treated in conflict with their gender identities, and it is unclear how such a rule would be applied to intersex students. While the DeVos Department of Education has indicated that it still intends to protect transgender students from bullying and harassment, it is hard to know how that would be carried out if the students are not even able to be recognized as transgender under the new law. Whether or not this memo comes to fruition, it signals the federal government’s animus towards transgender students in its consideration of regulation that would erase their recognition or protections completely from the law.
Additionally, the memo appears to have been issued by the Department of Health and Human Services (HHS). If a similar definition of sex were applied to nondiscrimination laws that are enforced by HHS, that could also have serious consequences for the transgender community. For example, Section 1557 of the Affordable Care Act prohibits discrimination in federally funded healthcare, health programs, and insurance companies, including on the basis of gender identity. At the end of 2016, a federal judge temporarily enjoined the enforcement of that nondiscrimination provision with respect to gender identity in Franciscan Alliance v. Burwell. However, it is unclear whether that ruling will stay in place and how broadly it would be applied. In the event that HHS chooses to define sex according to the memo, it could choose to go beyond not requiring the provision of (or health insurance coverage of) gender confirming medical care. In theory, such a definition would insulate healthcare providers who refuse to give any medical care of any kind to transgender people, regardless of its relation to their gender identity.
How Did We Get Here?
So, how did these state and federal policies come about? In the United States, 47 states, the District of Columbia and Puerto Rico all allow people to amend their birth certificates to match their gender identities. Kansas, Ohio and Tennessee are the only holdouts. In Kansas, courts and administrators point to a 2002 Kansas Supreme Court decision to justify their actions today. In Estate of Gardiner, the court reviewed the validity of a marriage between a cisgender man and a transgender woman. The husband had passed away, and his estranged son challenged the validity of the marriage in order to invalidate the wife’s inheritance rights. At the time, same-sex marriage was illegal in Kansas. The wife in this case had undergone social and medical transition and even had changed her out-of-state birth certificate. Nevertheless, the court ruled she was still “male” when interpreting her sex, and therefore, the marriage was invalid. Essentially, the court held that without legislative instruction otherwise, sex was immutable and could not be changed. Sixteen years later, despite a revolution in the way that the world sees and recognizes transgender people, Kansas still relies upon that reasoning to continue to refuse requests to update birth certificate sex markers for transgender people. To date, Kansas excludes any consideration of gender identity for the purposes of determining sex on a birth certificate.
At the federal level, on the other hand, the development of the recognition of gender identity as an inextricable part of “sex” for the purposes of nondiscrimination laws has been developing for decades. In 1989, the US Supreme Court held in Price Waterhouse v. Hopkins that a masculine woman could not be fired for not being feminine enough. The court held that this kind of sex stereotyping was still an employment decision made on the basis of sex, and was therefore prohibited by Title VII’s prohibitions on sex discrimination. This decision opened the door for cases that defined sex nondiscrimination laws to include transgender people, who were, by definition, not acting in ways that conformed to their sex assigned at birth. In 2012, in Macy v. Holder, the Equal Employment Opportunity Commission held that employment discrimination against a transgender person based on their gender identity was prohibited by sex discrimination prohibitions under Title VII. Similarly, this year, the Sixth Circuit Court of Appeals affirmed that ruling in a similar case that is now seeking certiorari before the Supreme Court, EEOC v. Harris Funeral Homes. In the educational context, the Seventh Circuit held in Whitaker v. Kenosha Unified School District that discrimination against a transgender student constitutes sex discrimination under Title IX. While a few federal courts have held that sex discrimination prohibitions do not include gender identity, they are in the minority. Up until 2016, federal courts appeared to be moving towards a strong majority that sex discrimination prohibitions included gender identity, and as such, federal agencies, including the Department of Education, began issuing guidance in line with those decisions. However, after the 2016 election, such guidances were systematically revoked, and the attorney general’s office has reversed course in no longer pursuing cases to protect or defend the rights of LGBT people.
What Happens Now?
The fights over transgender rights continue. Transgender advocates in Kansas will seek to change the birth certificate policy. Transgender advocates across the United States will push to hold the line and prevent the leaked memo from being anything more than a passing threat. And on November 6th, anyone who cares will vote.
Amira Hasenbush is the Jim Kepner Law and Policy Fellow at the Williams Institute. She works on a broad range of research topics, including discrimination based on sexual orientation and gender identity, family law issues for transgender parents and children, and the legal needs of people living with HIV. Amira holds a J.D. and an M.P.H. from UCLA, and she is admitted to the California State Bar. She also runs her own private family formation law practice, where she helps clients with sperm and egg donor agreements, surrogacies, adoptions and name and gender changes.
Suggested citation: Amira Hasenbush, The Impacts of the Shifting Definition of Sex Under the Law, JURIST – Academic Commentary, Nov. 4, 2018, https://www.jurist.org/commentary/2018/11/amira-hasenbush-definition-of-sex-under-the-law.php