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Trump’s Anti-Trans Memo Opens Door to Escalating State Surveillance

It’s part of a broader agenda to weaponize immigration, labor, economic, reproductive and policing policies.

A flag for Transgender and Gender Noncomforming people is held up at a rally for LGBTQI+ rights at Washington Square Park on October 21, 2018, in New York City.

The Trump administration’s proposed scheme to redefine sex as “a biological, immutable condition determined by genitalia at birth” is not just a calculated swipe at trans people. It’s also part of a broader set of efforts to undermine the contributions of feminism and to increase the marginalizing and criminalizing powers of state institutions.

The proposed redefinition, which was revealed this week after The New York Times reported on a leaked memo from the Department of Health and Human Services, could have far-reaching implications—particularly in the realm of health.

This latest gesture of clumsy cruelty would distribute harm in an intensely disproportionate manner, targeting people caught up in state systems of health, housing, policing, imprisonment, detention, immigration and so on. These shifts would only intensify the already swelling tides of criminalization, harm and violence directed primarily (though not exclusively) toward people of color and poor people.

State violence and vigilante violence are closely connected and mutually reinforcing in this moment: Emboldened by state-sanctioned transphobia, leaders of far-right groups such as the Proud Boys’ Gavin McInnis and others have made explicit calls for transmisogynist public violence. Historian of gender Amanda Price-Armstrong observes that “McInnis’s [call] and Trump’s leaked memo are equally incitements to violence against trans people.” Trans rights activist Isa Noyola likewise asserts that high rates of racialized anti-trans violence are closely linked to formal state exclusions.

Trump’s Memo Builds on a Long History of Anti-Trans Discrimination

Legal exclusion is hardly a new dilemma. In 1979, author Janice G. Raymond wrote that, “the problem of transsexualism would be best served by morally mandating it out of existence.” It was, in fact, the National Center for Health Care Technology (NCHCT) — a short-lived advisory group associated with what is now the Department of Health and Human Services — that in 1980 advised the agency against public coverage for gender-affirming health care. Among others, Raymond was commissioned as an advisor on the NCHCT report. In 1981, Medicare excluded what it called “transsexual surgeries” — despite retaining coverage for some of the same procedures it covered for non-trans people — as a matter of policy. These federal exclusions were maintained until 2014.

A 2016 rule issued by the Department of Health and Human Services under the Affordable Care Act—which has already been under fire by the Trump/Pence administration—clarified that providing coverage for procedures such as hormone prescription for non-trans but not for trans people constituted discrimination. One study found that this regulatory clarification brought about significant changes in the US health care landscape, though many public and private insurance plans have maintained exclusions.

While gender-affirming care has been a focal point for advocacy, more generalized discrimination in primary and specialty health care settings has also been a persistent issue for trans people. Among poor trans people, trans people of color and trans people with disabilities, such discrimination has only exacerbated the pronounced structuring effects of racism, class inequity and ableism in health care settings. Trans health care is particularly abysmal in prisons, jails and detention facilities—where poor people and trans people of color are often overrepresented due to profiling and criminalization.

New Threat of State-Sponsored Genetic Testing

Despite the highly limited legal gains of the last decade, the prior 30-plus years of history of targeted legal trans exclusion demonstrate that the Trump/Pence agenda is riffing on old refrains. The proposed tool of state-sponsored genetic sex testing, however, is new.

The threat of genetic testing is strangely unsurprising, however, because a vulgar genetic determinism that would purport to explain many complex forms of human difference and embodiment has been popularly circulating for some time. And as the International Olympic Committee has already blunderingly and dangerously demonstrated, mobilizing biological testing for “true” binary sex determination is not only a scientific failure, it also wreaks havoc on people’s lives. Responding to anxieties about “masculine” women athletes, the International Olympic Committee instituted chromosomal testing in the 1960s, later replacing it with testosterone level testing. In addition to subjecting women athletes to invasive scrutiny, such tests have also resulted in disqualifications, suspensions and public smear campaigns—even though scientists emphasize that their results are neither simple nor reliable.

The leaked memo follows the failures of the International Olympic Committee in insinuating that genitals and genes offer irrevocable proof of sex. Intersex people—particularly people of color like Caster Semenya and Dutee Chand—have been caught in the crosshairs of such misogynist anxieties, highlighting an important overlap in how trans and intersex people are impacted by the racialized medical/legal surveillance of embodiment.

The memo’s appeal to biology can be rejected even on its own terms: a simple and straightforward genetic basis for human dimorphic sex is not substantiated by even the most mainstream of sciences. Even the International Olympic Committee accepted this fact when they ceased chromosomal testing 20 years ago—though the Trump/Pence administration still evidently regards this practice as “good science.”

Scientists Call Foul

In the wake of the leaked memo, scientists have called foul, and are parsing scientific knowledge of sex/gender to challenge the policy’s claim to define sex “biologically” via genitalia at birth or genetic sex testing. In so doing, however, they are also suggesting a potential genetic or neurological basis of variance in gender identity that is caught up in similar forms of “geneticization” of difference.

Sociologists Catherine Bliss, Dorothy Roberts and Alondra Nelson point out that efforts to define complex forms of human difference such as race, gender, sex and sexuality can be dangerously reductive. As Bliss argues, even when such efforts are directed toward social justice, they underemphasize how historical and political forces define, produce and maintain difference.

Relatedly, gender studies researchers Sarah Richardson and Rebecca Jordan-Young describe how science on sex difference in genes and brains is powerfully shaped by popular understandings of femininity and masculinity. They argue that scientists often ask questions that are shaped by cultural notions of gender difference, and that these presumptions influence the research questions they ask and the conclusions they make. While neither writer devalues the importance of scientific inquiry, each questions the efficacy of a singular reliance on scientific data as divorced from culture and politics.

But even if hormones, neurons and genes do not tell us everything about sex and gender, it remains significant that the Trump/Pence administration’s explanation of “objective” sex is fantastical, not biological.

Threats Associated With State Surveillance of Our Bodies

It is not solely intersex and trans people who would benefit from states knowing less rather than more about their bodies and genes. Invasive surveillance is animated by immigration and law enforcement agencies, it is institutionalized in the thinly veiled racism of behavioral genetics, and it is frequently mobilized against reproductive justice and tribal sovereignty. Deference to genetic and neuroscientific explanations of identity and behavior manifests concretely in policy-shaping fields like criminology, and advances “biological” explanations to justify the institutionalized racism of criminalization.

Given the recent resurgence in biocriminology, alongside the fact that formal US laws permitting forced sterilization have only recently been repealed, it is not surprising that sociologist Troy Duster calls genetic science a “backdoor to eugenics.” While others are less pessimistic, even genetic scientists are concerned with the criminalizing effects of such technologies in state hands.

With respect to sex and gender, Argentina’s Gender Identity Law and Malta’s Gender Identity, Gender Expression, and Sex Characteristics Act have done much to divert the authoritative gaze of state governance away from people’s bodies. Among other provisions, each law emphasizes self-determination and depathologization, and limits the power of medical providers and judges to make legal gender determinations.

Other types of laws have instituted gender-neutral classifications, such as “x” or other categories, on official state documents. While some have celebrated the proliferation of administrative sex/gender classifications as “friendlier” versions of state authority, these additions have not necessarily deterred such a gaze.

This is one of the many reasons why some activists propose taking “sex” (and “gender”) off the table as ostensibly “vital” information for state surveillance. Troubling histories and contemporary accounts of state classification systems and their effects on racialized, sexualized, gendered, disability-related and citizenship-based marginalization suggest that less surveillance might be preferable to “better” surveillance.

The Existence of Trans People Is Not Up for Debate

Despite the objections of the Trump/Pence administration, it should be clear that the existence of trans people is not up for debate. But in taking action to fight this latest development, it is important to recall that this struggle is not only about the existence of trans people. Rather, the administration’s recent gesture is part of a much broader totalitarian agenda to weaponize immigration, labor, economic, reproductive, and policing and incarceration policies that broadly target people of color, poor people and immigrants (to name just a few). While such sweeping moves are hardly out of step with the stated aims of this administration, Brett Kavanaugh’s recent confirmation only emphasizes the starkness of this consolidation of power.

In addition, it’s important to stay alert to the subtleties of how “science” — in rather mystified ways — travels in all of these debates. This isn’t just about fact and falsehood. Rather, it’s about how scientific practices, shaped as they are by culture and politics, move in all sorts of unpredictable ways. Without attending carefully to the particularities of these circulations, it’s possible to become carelessly reductive about what sciences “tell us.” As sociologists Laura Mamo and Jennifer Fishman assert, it is justice—not just ethics—that can and must guide responsible and accountable scientific practice. And as sociologist Ruha Benjamin suggests, a collective “conscientious objection” to unethical forms of scientific inquiry and practice can help light a path to justice-oriented science.

Collective action is the object lesson here, on many levels. As Dean Spade writes, “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.” This memo and its potential implications are broader than they might appear at first glance. Our response ought to be at least as broad in its demands for different modes of mutual care and collective power.

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