The Supreme Court’s revival of President Trump’s ban on transgender troops has sparked another brief outcry over the current administration’s ongoing attacks on transgender rights, but the response has not translated into renewed outrage against a much broader threat to trans communities that continues to loom, despite fading from the headlines: the policy changes contained in the memo leaked by the federal Department of Health and Human Services last October.
The mainstream media pounced on the leak, which The New York Times described as a sign that “‘transgender’ could be defined out of existence,” for a brief time. As the 24-hour news cycle continued to spin, however, coverage of the leaked memo and its effects on the transgender, gender nonconforming and intersex (TGNCI) communities has waned. Until the new burst of attention over the military ban this month, discussion of our lives was no longer “timely.”
As two members of the Sylvia Rivera Law Project (SRLP) — a nonprofit legal aid organization based in New York City that works mainly with low-income TGNCI people of color seeking to obtain gender-affirming identification and access to sex-segregated programs or benefits — we have seen the impact of the media cycle on our clients and members. Our clients and members have remained confused and anxious about the status of the leak.
Once again, it appears that the mainstream media is concerned less with providing updated information to the public than with churning out news stories that amplify feelings of uncertainty and fear.
Hashtag activism and 24-hour news cycles, along with the constant onslaught of harmful policy proposals by the Trump administration, effectively guarantee that major issues affecting TGNCI communities will eventually fizzle out and fade. However, we at the Sylvia Rivera Law Project know we cannot be erased — by either administrative action or media silence. In the face of a hostile administration, our members state firmly and without reservation: “I am here. I exist.” One simply cannot define a people out of existence.
To be clear, legal service providers and health care advocates have tracked the status of the proposed changes to HHS’s policies since indications surfaced that the Trump administration might seek to change the definitions of “sex” and “gender.” We emphasize this because too frequently in moments of crises — or years-long emergencies — communities most directly impacted by violent administrative action feel isolated and ignored. It is easy to see why, given the mainstream media’s tendency toward clickbait and easily digestible news stories. However, organizations such as Lambda Legal and the American Civil Liberties Union (ACLU), along with several smaller nonprofits and specialty law firms, continue to monitor the legal climate and are prepared to litigate should the Trump administration’s leaked memo become a proposed rule.
The right to self-determine gender identity and expression cannot be delegated to an outsider’s opinion — or subordinated by it. The individual expressing their gender identity is the sole authority of such gender expression. Any assertion against this from the administration or anyone else flies in the face of an existence found across the world, and that goes back centuries.
Simply put, gender identity or expression is not inherently based on biological, chromosomal or hormonal characteristics. One’s gender identity is not a medical condition or diagnosis. New York City recently showed its knowledge of this by updating existing local laws to allow people to correct the gender on their birth certificate through self-attestation.
Tactics that would make the sex assigned to a baby at birth indicative of gender identity and expression for life are not only dangerous fear tactics, they are triggering reminders of an everyday reality. Even in responding to recent media requests, the staff at our organization has had to face reporters’ questions about gender identity and expression in medical communities. It’s clear from these questions that simply speaking to a transgender and/or gender nonconforming person is not sufficient proof of our reality and identity.
For intersex individuals, who have been fighting for decades against forced nonconsensual surgeries and have only recently been afforded any bodily self-determination by the medical establishment, this proposed change echoes the not-so-distant attempts to force the bodies of babies and children into strict binary boxes in order to better adhere to societal expectations of gender.
By stating that “gender” can be assessed by the genitalia present at birth exclusively, the Trump administration demonstrates that not only is it ignorant toward our communities, but also demonstrates a distinct lack of interest or care. This is nothing new. Nor does it come as a shock to people within these communities or those who love us.
We know this futile attempt to eliminate the existence of TGNCI individuals is merely another example of the Trump administration’s attack on groups of people consistently seen as politically disposable: immigrants, people of color, low-income people, people with disabilities and all women. We know that these types of leaks are purposeful fear tactics, imagined as a way to silence us, and push us out of public and political life. Communities of color, immigrant communities and people concerned about their reproductive rights have already experienced similar tactics from this administration and indeed from most administrations.
The Department of Health and Human Services’ leaked memo would simply reify in law and policy the experiences TGNCI people go through every day. Society consistently tells us we do not exist. At schools or work — when filing a police report, obtaining proper identification, appearing in court or seeking medical treatment — we already experience erasure. The current backlash against an expansive definition of gender is to be expected. Visibility politics — the idea that the more individuals who are “out” and legitimated by mainstream society, the safer we are — was never truly rooted in liberation for our communities.
Perhaps most insidious is the administration’s targeting of the Department of Health and Human Services in particular: Due to blatant discrimination — legal in most states and practiced even if illegal in others — most TGNCI people, particularly people of color, live far below the poverty line. At the Sylvia Rivera Law Project, our membership lives mostly in homeless shelters or supportive housing. They are constantly seeking — and constantly being denied — legal employment, and they struggle to maintain any state benefits due to rampant transphobic discrimination.
All of our eligible members rely on the medical establishment to gain legitimization within a transphobic, racist and colonialist society. Many low-income TGNCI individuals, in New York and a small growing number of other states, rely on Medicaid or insurance provided through the Affordable Care Act (ACA) for gender-affirming health care. This memo has the potential to not only affect access to medically necessary health care, but also access to civil rights protections when medical care providers act in disrespectful and dangerous ways. It has been apparent for some time that this administration seeks to severely reduce federal funding for Medicaid and the ACA and for these life-saving procedures in particular.
These types of fear tactics work. As a direct legal services provider and movement-building space, the Sylvia Rivera Law Project witnessed the increased number of individuals seeking legal guidance. The day after The New York Times article, people were coming to ask us if they needed to rush name changes. Individuals born in states or countries where birth certificates cannot be updated also asked us what they could do. Perhaps most terrifyingly, many people asked if they would be required to have certain surgeries, or if they should rush medical procedures that they were not sure they wanted, could afford or could recover from properly. In the past two months, this fear has not abated. Our people remain terrified and uncertain, a familiar state for TGNCI people in a violent world.
Adding to this uncertainty and terror is the current media climate — one caught up in tweet storms and sensationalized news. Too frequently, the mainstream media blast a story for several days, inundating an already traumatized community with analysis and punditry. Make no mistake; knowledge is essential in a world filled with misinformation. However, when the media fail to continue coverage of the aftereffects of the Trump administration’s brutal policy proposals, we in affected communities are left in a state of vulnerability. It may appear that no action is being taken to counteract the hate. This is simply false.
During a convening of legal providers and healthcare advocates in December 2018, sponsored by the Transgender Law Center, the Center for Health Law and Policy Innovation of Harvard Law School, and Lambda Legal, one major theme appeared again and again. TGNCI people are not alone: we have each other’s backs. Unless and until the Trump administration halts its attack against our community — until state-sanctioned violence is eradicated — we will continue to fight. We must continue to live our lives and work to navigate the existing tangle of laws and policies without fear or intimidation. We must continue to remind each other that all federal and state laws, court decisions and administrative regulations remain in place. For those of us in cities or states where we have won some basic rights, we must continue to access them and report when access is denied.
We must care for each other and for ourselves as our existence is vital and essential. We must draw upon centuries of knowledge, of practices of community care and support that TGNCI people have developed as part of the pursuit of liberation. Everyone from colonizers to religious institutions have attempted to erase TGNCI people before. They have never won.