This week, The New York Times obtained a draft memo leaked from the Department of Health and Human Services. It argues that the government needs to establish a binary definition of gender, particularly for the purposes of enforcing Title IX—the law stipulating that nobody can be discriminated against on the basis of sex in an educational context receiving federal funding. The new definition would have people defined as either male or female, according to the genitals observed at their birth, with disputes resolved by genetic testing. The memo suggests that gender would be defined “on a biological basis that is clear, grounded in science, objective, and administrable.”
The Office for Civil Rights at HHS is run by Roger Severino, an ideologue with a history of opposing queer Americans’ rights (he has defended gay “conversion therapy” and railed against gay marriage). It is not at all clear that the substance of the memo will be enacted in any form; that it was leaked by the White House suggests it is a provocation designed to inflame and divide voters in advance of the midterms. But there are two aspects to the document that reveal the utter bad faith in which the Trump administration, and Republicans more broadly, are engaging in the issue of gender.
The first is very simple. HHS proposes to pin down sex as a matter of biological certainty that can trump a person’s claimed gender. But the concept of two “biological sexes” is inaccurate. For example, all babies are not born with bodies that can be neatly categorized. The Intersex Society of America estimates that 1 in 1,500 to 1 in 2,000 babies are born with genitals that do not appear obviously male or female. That is a very large population of intersex Americans, whose existence would be falsely recategorized by this memo’s proposed view of sex.
For many years, intersex people have been encouraged or forced, via surgery, to identify with one gender and then “live as a woman” or “as a man.” But that just hasn’t worked, instead leading to great unhappiness for many people. The medical consensus now is that intersex people need to determine their gender for themselves, or risk serious psychological trauma.
It is a mistake to turn intersex people into a kind of “test case” to back up trans people, both because it’s reductive of intersex people’s experiences and because it wrongly implies that trans people’s gender identities have anything to do with their genitals. But the two groups are strongly allied, because trans and intersex people have both been harmed by the imposition of a binary view of birth gender—precisely what HHS wants to do now.
The medicalized view of gender assignment contained in the HHS memo runs contra to everything that research tells us about how gender actually works. But the “two genders and nothing else” idea is repeated over and over again by conservatives who think that there is a vast social justice campaign to undermine traditional American family values, under the umbrella term of “gender ideology.”
That mistake is the core piece of misinformation spread by the HHS memo. But there’s a second, more conceptual element to the memo’s perniciousness. It frames gender—a complex phenomenon that evolves through time and varies according to individual—as something basic and biological: as something “that is clear, grounded in science, objective, and administrable.” In doing so, the memo reduces the conversation around gender down to body parts. It turns the question of trans rights—the rights to be a free person in every legal respect—into a humiliating, dehumanizing debate about penises and vaginas. It demonstrates a refusal on the part of HHS to consider trans people as full human beings, with minds as well as bodies. Worse still, it forces all of us to argue for trans rights on those specious grounds.
That’s not a coincidence. Again and again, fights over civil rights in America (for black people, for gay people) have turned into fights over the barest, basest facts of life—whether this person can copulate with that person, whether this person can use a certain bathroom. The very premise of these debates contains the suggestion that the offending parties are not quite human, or that they have somehow transgressed the bounds of personhood.
This dehumanization is baked into the memo’s design. Want to be considered full, free, trans human beings? First, the memo says, let’s have a conversation about your genitals. Then we can talk about your rights. Because the memo sets the boundaries along those lines, advocates for trans rights can become trapped in an argument that works against them. The debate itself ends up transmitting the memo’s junk science and junk presumptions into the culture, where it can fulfill its purpose of engendering inequality.
There are many precedents for bringing the debate about rights down to the lowest possible denominator. In the nineteenth century, people claimed that mixed-race people were unable to have children, the same way that mules are infertile. It was patently untrue even at the time, but public “debates” over the claim meant that mixed-race people’s lives were always discussed in this degrading context.
In that case and in this, the political discussion purports to be scientific and objective. But it instead manipulates the terms of the conversation to be about organs, not hearts and minds. Trans people are, like any other group, citizens who vote. The leaked HHS memo is a cynical attempt to provoke a firestorm in our culture, in order to draw ever starker lines between the left and the right. But we can’t fall for it. If trans activists are reduced to talking about their genitals at the expense of talking about their human experience, then we are all degraded.