4 Things to Know About Trump’s Possible Reversal of Obama’s Transgender Policy

The Department of Health and Human Services is reportedly considering scrapping Obama-era executive actions tying federal school funding to recognizing gender as a choice.

The report Sunday in the New York Times on the proposed change referenced a leaked memo. Nothing has been finalized, however.

Here’s what to know about the potential new policy.

1. New Policy Same as the Old?

The new policy, if adopted, would likely put into writing the presumption in place before President Barack Obama’s administration’s executive actions.

The Obama administration in 2016 mandated that public schools open their restrooms, locker rooms, and showers to transgender students based on their gender identity, rather than on their biological sex.

The Times reported on the leaked memo that said HHS would define gender “on a biological basis that is clear, grounded in science, objective and administrable.”

The Times’ headline on its report asserted: “‘Transgender’ Could Be Defined Out of Existence Under Trump Administration.”

However, the substance of the article explained the definition would be applied for the purposes of Title IX, which is the law that bans gender discrimination in education programs that receive federal financial assistance.

“In the last months of the Obama administration, federal bureaucrats unlawfully redefined the word ‘sex’ to mean ‘gender identity,’ and then imposed a radical bathroom and locker room policy on all our public schools, and said that doctors who declined to perform sex ‘reassignment’ procedures would be guilty of discrimination,” Ryan T. Anderson, a senior research fellow at The Heritage Foundation and author of “When Harry Became Sally: Responding to the Transgender Moment,” told The Daily Signal.

“Thankfully, it appears that the Trump administration has rejected Obama’s transgender agenda and understands the word ‘sex’ correctly as a bodily reality,” Anderson said.

The memo reportedly says: “Sex means a person’s status as male or female, based on immutable biological traits identifiable by or before birth. The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

2. What’s the Current Legal Precedent?

A lower federal court ruling in Texas halted the Obama administration’s regulation.

Twenty-four states challenged the Obama administration’s Education Department and Justice Department for the gander-identity mandate in three different lawsuits.

The Obama administration asserted Title IX provides protections for transgender students, thereby requiring schools to allow transgender students into restrooms and locker rooms based on their gender identity.

Federal Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas in Fort Worth ruled in 2016 that the Obama administration had overstepped its bounds in bypassing the regulatory process in imposing the rule.

“It cannot be disputed,” O’Connor, an appointee of President George W. Bush, wrote that in passing Title IX, Congress “meant the biological and anatomical differences between male and female students as determined by their birth” in reference to “sex” in the Title IX law.

3. What is the Trump Administration Saying?
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