Transgender historian Susan Stryker wrote in her 2017 book Transgender History that the contemporary meaning of the word “transgender” is still under construction. It has been redefined often since the word was first created in the mid-20th century, but even then the very concept of moving from one gender was already very old. While Roger Severino, appointed by President Trump as the director of the office for civil rights at the U.S. Department of Health and Human Services, would call this concept “radical gender ideology,” the history books and Chicago activist groups call it reality.
Severino’s memo, leaked earlier this week by the New York Times, argues that gender should be rigidly defined under Title IX “on a biological basis that is clear, grounded in science,” as a male/female binary that is unchangeable and determined by genitalia perceived at birth. HHS is encouraging the other government departments that also enforce Title IX—including Education, Justice, and Labor—to follow suit. Under this rule, genetic testing is the only option to determine a person’s gender. The memo doesn’t just define a gender binary as a rule, it also invalidates gender confirmation surgeries, ignoring any possibility of a person transitioning from the gender assigned at birth. The memo all but explicitly states that all people must identify as either male or female, whichever they were registered at birth. Many trans people feel this strict binary erases their identities.
The crux of Severino’s argument is that X and Y chromosomes determine gender, a theory that has been disproven. And even before genetics were discovered, no one talked about regulating a person’s gender expression based on anatomy. Before the 20th century, there was no standardized system of birth certificates that assigned gender. Our contemporary understanding of gender is relatively new, only dating back to physician Magnus Hirschfeld’s work in early 20th-century Germany. In his studies of gender and sexuality, Hirschfeld coined the terms “transsexual” and “transvestite,” both of which have changed in definition and connotation over the past century. As time passes, the terms we use to define gender change along with the way we perceive gender roles. Past cultures have used systems that have organized people into social genders through a variety of methods different from our contemporary binary, often by the work people did rather than by the bodies that did the work. Some gender systems were determined by social, legal, or religious obligations. Some people changed gender roles based on dreams or visions. Many indigenous American communities have three or more genders. Ancient rabbinical texts explain seven distinct genders once recognized in Judaism.
Gender varies by time, place, and culture, not just science. Yet another factor influencing gender identity for many people is genitalia deemed “ambiguous” at birth. With so many contingent factors, gender is difficult to explain, making it an easy target for bigotry. The memo’s leak coincidentally occurred during the week of Intersex Awareness Day and protests in Chicago and New York, which aim to educate people about the often overlooked group of intersex people in the queer community.
The existence of intersex people is stark proof that bodies exist outside a gender binary. One in 100 people is intersex, possessing some combination of male and female genitalia, internal sex organs, and chromosomes. Oftentimes intersex people have combinations of chromosomes that aren’t male or female, such as XXY or XO. When intersex babies are born and doctors are unable to determine a male or female gender, they often assign one to the infant. Surgeries that are considered “cosmetic,” such as clitoral reductions, vaginoplasties, and the removal of functional testes are forced upon the child, and may not match their identity. Lurie Children’s Hospital of Chicago is still performing these operations, which the United Nations has deemed a form of torture.
The Chicago-based Intersex Justice Project launched a campaign outside Lurie last year on Intersex Awareness Day to end intersex surgery, and will be leading another protest on this year’s Awareness Day on Friday, October 26, this time organizing a train occupation. Pidgeon Pagonis, cofounder of the project, summarizes their demands: “We want a public apology for the irreversible harmful surgeries that have been done on intersex people without their consent.” The group also wants sensitivity training for Lurie staff and clinicians who handle intersex children, taught by intersex individuals. They demand reparations, Pagonis says, “including free medical care that doesn’t position intersex variations as problems to be fixed.” This would include hormones and psychological support for intersex people and their parents.
Friday’s protest, which begins at 1:15 PM at a location that is only disclosed privately on Intersex Justice Project’s Instagram account, is inspired by the first (and last known) intersex protest in 1996 outside the American Academy of Pediatrics’ annual convention. The idea for the train action, Pagonis says, was inspired by the Black Trans and Gender Non-Conforming Collective and #NoCopAcademy who crowded CTA Red Line cars to commemorate Rekia Boyd and chant against Mayor Emanuel’s proposed cop academy, respectively. IJP’s protesting arguments against “corrective” surgeries will conflict with the administration’s historically and scientifically inaccurate definition of gender.
Sex defined by a male/female binary is too rigid to accurately label the many ways we express gender socially. Bodies are too varied in their chromosomal makeup and genital formation to accurately conform to the social categories a person lives in. They can’t be defined on such a narrow binary. Many people—myself included—have taken years to come to an awareness of their own gender identities. Why does the government need to intercede in that already complicated, and very personal, process?
So why does the Trump administration insist on defining gender as a binary? Comments in the New York Times, the Chicago Tribune, and even from MSNBC’s Rachel Maddow speculate that it’s a simple tactic to score political points before the upcoming midterm elections. Maddow framed her coverage of the story by recalling President’s Bush’s homophobic remarks before the 2004 election to encourage conservative voters to come out and vote against marriage equality. This is not a scientific debate on whether or not 1.4 million transgender people exist in the U.S.; this is political, using real people as pawns to gain power.
Should other government departments follow HHS, the results would be bigger than the ongoing bathroom debate. On Wednesday, the Justice Department told the Supreme Court that businesses can discriminate against their own workers based on their gender identity, suddenly reversing the position of 2008’s Schroer v. Billington. People may begin to face discrimination at work and while jobs-hunting. Social services and health care (including gender-affirming surgeries, hormone replacements, and other necessary care for transgender patients) could be denied. Military bans lifted during the Obama era could go back into effect. Identification documents such as drivers licenses, birth certificates, and passports might be impossible to change. Medical records would be inaccurate. The memo’s broad support from the government, says Pagonis, “will only serve to give surgeons who ignore the United Nations more fuel for the already existing intersex-phobic fire. A parent of an intersex kid who (rightfully) decides they don’t want to allow surgeons to ‘fix’ their child could be met with, ‘Sorry, sex reassignment surgery is the law now.'”
Pagonis cites the colonialists who attempted to decimate the two-spirit people of indigenous communities, the medical-sanctioned genital mutilation of infants since the 1950s, and the U.S. government’s refusal to acknowledge the existence of AIDS in the early 80s, even as it plagued and ravaged the queer community. “Yet we fought back,” Pagonis says. That might be where the Trump administration’s political trick for votes goes wrong: transgender and gender-nonconforming people have historically turned out to fight and vote more so than their cisgender counterparts, and in disproportionately high numbers for Democrats.
Following the memo’s leak, activist group Voices4 and Lambda Legal gathered hundreds of people in Washington Square Park in New York City, the same park where activists Marsha P. Johnson and Silvia Rivera founded the Street Transvestite Action Revolutionaries in 1970. They shouted “Hell no to the memo!” Hundreds more protesters gathered outside the White House.
The Trump administration’s definition of gender becoming policy would undo legal work to protect trans people dating back to the Minnesota state legislature’s ban on discrimination against transgender people in 1993, all the way through President Obama’s protection of trans identities on a variety of federal fronts. But this unprecedented setback on one vulnerable community’s civil rights might not take shape should the election favor a democratic senate. With 33 Senate seats on the upcoming ballot, a shift in power might see HHS’s Roger Severino out of a job.