- The Department of Health and Human Services is preparing a narrow legal definition under Title IX of gender as determined solely by someone's genitalia at birth that would eliminate the recognition of transgender students, according to a draft memo obtained by The New York Times.
- The memo argued for a definition of gender based on "a biological basis that is clear, grounded in science, objective and administrable," and stipulated a birth certificate or genetic testing would serve as proof of sex.
- The draft's definition would be the largest move yet to roll back Obama-era federal protections that recognize 1.4 million Americans who identify as transgender.
College administrators have faced uncertainty over how aggressively the Trump administration would attempt to change hotly contested protections for transgender students.
Since Secretary Betsy DeVos took the helm of the Education Department, she rescinded the Obama administration's 2016 guidance that expanded investigations of gender discrimination to include allegations of transgender bias and stated institutions must allow LGBTQ students to use bathrooms that align with their gender identity. The Education Department clarified after the guidance was rescinded that investigators would still look into some of transgender students' complaints that fell under Title IX protections against sex discrimination, though it would no longer hear cases about bathroom accommodations.
Some colleges have moved to be inclusive of trans students in the wake of the rollbacks. All-women's institution Spelman College, for example, said last year it would accept transgender female students.
Some colleges have not, however, raising concern among LGBTQ advocates that the new definition could open the door for widespread discrimination. Transgender students will still be able to sue colleges in discrimination cases, though the draft memo would essentially eliminate the possibility they could turn to the government for assistance, a source told Inside Higher Ed.
The new policies could be presented to the Justice Department by the end of December, after which they could be implemented in Title IX statutes, which bans discrimination on the basis of sex in federally funded education programs and covers areas such as student housing, athletics and admissions, the Times reported. LGBTQ advocates have little confidence the department would stop the definition from going forward due to Attorney General Jeff Sessions' previous stances on transgender protections.