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A new Trump administration memo outlines a plan to eliminate transgender peoples’ rights against sex discrimination, but Omar Gonzalez-Pagan of Lambda Legal says the administration’s memo is “not rooted in reality” and “unlawful”

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DHARNA NOOR: It’s The Real News. I’m Dharna Noor in Baltimore.

A report in The Sunday New York Times says that the Trump administration is looking to eliminate civil rights for transgender people, which would impact some 1.4 million people. The Times cited a Department of Health and Human Services memo which shows the intent to establish a legal definition of sex under Title IX. The memo reads, quote: “Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth.” And it goes on, quote: “The sex listed on a person’s birth certificate as originally issued a shall constitute definitive proof of a person’s sex, unless rebutted by reliable genetic evidence.”.

Hundreds took to the streets in New York on Sunday and in D.C. on Monday to protest this memo. Joining me to talk about this is Omar Gonzalez-Pagan. Omar is a senior attorney in the national headquarters office of Lambda Legal, a national legal organization that works on securing civil rights for queer and trans people, and people living with HIV. Thanks so much for coming on today.

OMAR GONZALEZ-PAGAN: Thank you. Thank you for having me and for discussing this very important topic.

DHARNA NOOR: Many have noted that this isn’t, of course, the first time that the Trump administration’s attacking the rights of trans people. Previously they sought to ban transgender people from military service. They’ve rescinded guidance to public schools recommending that trans students be allowed to use the bathrooms of their choice. So I think that this has outraged many, but shocked few. And I think even fewer understand exactly how Title IX works. Could you explain what exactly Title IX is. I mean, of course it offers protection from discrimination based on sex, but how does it actually do that? And what power does the Trump administration have to change it by themselves?

OMAR GONZALEZ-PAGAN: So here what we’re talking about, it’s not just Title IX, but really the sex discrimination provision in the Affordable Care Act, which is incorporated from Title IX. Title IX prohibits discrimination on the basis of sex in federal programs and activities that receive funding from the Department of Education, and when it comes to issue shares from the Department of Health and Human Services. And so that goes to a broad range of programs and activities. Public schools colleges that receive Pell Grants in the education context, in the healthcare context, Medicaid, Medicare, are programs that are covered. But every hospital that accepts Medicaid payments, that accept Medicare payments, that receives federal grants for research or for health programs, all of those programs and activities are covered. Really it is a regulation of the largest sector of the economy, healthcare.

And in this context it prohibits discrimination with regards to coverage of transition-related care; being treated at an emergency room or a doctor’s office, the ability to be regarded by your pronouns, to be treated as who you are and respected as who you are, as opposed to being mistreated, abused, or misgendered by hospital or healthcare staff.

DHARNA NOOR: And what power does the Trump administration actually have to change this definition by themselves, without the input of courts and Congress?

OMAR GONZALEZ-PAGAN: Well, that’s a very good question. Any federal administration has the power to enact regulations. But here the power is limited. It is one that it has to be in accordance with the law, one that has to follow statutory interpretations by the courts, and one that has to be in keeping with scientific and medical understandings, for example.

What the administration is proposing in this instance is one that is divorced from court decisions going back decades, saying that sex discrimination prohibitions cover transgender people. It is counter to our reality, our lived experiences and the lived experiences of transgender people. And it is counter to the scientific and medical understanding. Frankly, it is a proposal that is divorced from reality, rooted in a religious ideology. And it is one that it is unlawful.

So the short answer to your question is the Trump administration does not have the power to enact the proposal that they seek to enact through this memorandum, and later a proposed rule.

DHARNA NOOR: If the changes proposed in this memorandum actually were implemented, though, could you talk a little bit more about some examples of how this could affect the lives of trans people. You mentioned you mentioned being misgendered and mistreated in medical care. Could you talk more about what that could look like practically?

OMAR GONZALEZ-PAGAN: Well, practically speaking, this would have the most immediate impact on healthcare, and it will have collateral effects on education, employment, and housing. All of which have civil rights laws at the federal level that prohibit discrimination on the basis of sex.

What does this mean? It means that transgender people will have a harder struggle. It does not mean that they’re unprotected. And I want to be absolutely clear. This regulation cannot change the law, and most federal courts have interpreted the law, including Title IX and Section 57 of the Affordable Care Act, to prohibit discrimination on the basis of sex, and that that covers and extends to transgender people.

But what about that transgender person who doesn’t have the resources, the ability to go to court on their own? They will no longer count from the protections of the federal government, the Office of Civil Rights, to investigate their complaint and to actually address it. It is, frankly, shameful that a civil rights entity like the Office of Civil Rights, or the Department of Health and Human Services, or the Department of Education, or the Department of Justice, is abdicating their duty to enforce civil rights laws and to do the opposite: to actually write off a minority that is consistently discriminated against in our society from the protection of federal law. I think it is not only shameful, but on America. And it is something that we would fight in the courts if it were to happen.

DHARNA NOOR: Talk about the kinds of pushback that we’ve seen very quickly after this report came out in the Sunday Times. A protest was organized in New York; on Monday in D.C. we saw hundreds taking to the streets. Talk about who’s been participating in that pushback, and what effect you think it will have.

OMAR GONZALEZ-PAGAN: Well, you know, you saw a groundswell of opposition. You saw the quick reaction from that community to both express solidarity and support for the rights of transgender and gender nonconforming people, and to oppose and say no to this outrageous unlawful act. What we have seen is the resilience over the years of transgender people. Over the last two years they have been attacked consistently by this administration. We have prevailed in the courts, and we will continue to prevail. But it is something that takes a toll, to know that your federal government is consistently attacking a minority group; is consistently attacking you and and disrespecting you, and saying that you are not who you are, to try to erase your existence. They cannot do that. But it does take a toll. It sends a harmful message, and it really does a discredit to who we are as a country and a nation.

DHARNA NOOR: I think that this message is particularly harmful because Human Rights Campaign has noted that 2018 is the most deadly year for trans people since 2013, and 19 of the 21 trans people killed- at least the killings that are on record- have been people of color. That’s according to the Gay and Lesbian Alliance Against Defamation. Many have noted that trans folks who are otherwise marginalized, whether it’s because they’re poor, people of color, or immigrants, will be hit hardest by the changes outlined in this memo if they’re put into action. Could you talk about that, about who will be most affected?

OMAR GONZALEZ-PAGAN: Absolutely. Those among us who are less privileged, without the resources, socioeconomic status, or the ability to seek the access to justice in the courts would be the most impacted, right. When we cannot count on the federal government to enforce the civil rights laws where everybody could go to, the door should be open to every person, when we can no longer count on that, it leaves those people to seek recourse in the courts. Not everybody has the resources, the money, the opportunity, or the ability to do that. And organizations like ours, Lambda Legal, will continue the fight. But we don’t, we cannot- we do not have the resources to replace the federal government when it comes to enforcing those federal civil rights laws.

I think it will impact most the people who have the least access to healthcare; especially people of color who have to rely on federal programs, and that those federal programs now may not have coverage for their transition-related care because of this definition by the federal government.

DHARNA NOOR: I certainly don’t want to ask you to read the minds of anybody in the Trump administration, but why do you think that these changes were proposed? Other than just, as you mentioned, a religious allegiance, is there something else that they’re trying to get at here rather than just, you know, being evil and discriminatory?

OMAR GONZALEZ-PAGAN: Well, I haven’t used the word evil, but I think we can use the word cruel. And here’s what’s happening. This administration has empowered people who have made a career- a career- of attacking and demeaning and seeking to eradicate the rights, equality, and dignity of LGBTQ people. Roger Severino, the head of the Office of Civil Rights at the Department of Health and Human Services who’s actually proposing this memorandum, has a history of actually attacking LGBTQ people throughout his life. This is the head of the Division of Civil Rights in the Department of Justice has an anti LGBTQ history. And really, the empowerment of these people has led to, really, the ostracisation and the erasure of LGBTQ people from federal law. This is what they see. And we have to battle them in the court of public opinion, and in the court of law. Thankfully, the courts have held back this administration time after time, and we’re hopeful that we can do that again.

DHARNA NOOR: Talk more about those battles, and the ones that other people can wage, people who are concerned about this proposed change. This memo has sparked a lot of outrage amongst trans folks and allies. What can people do with that outrage? How can people make a difference and ensure that, you know, these changes aren’t proposed and that the rights of trans people are not continuously attacked?

OMAR GONZALEZ-PAGAN: Yeah, I think that’s very important. There are a number of action points that can be taken. Ultimately we have the power, right. We the people is we, us, all of us are we the people. The government and the Constitution belong to us. And so right now it’s about educating the public, exerting political and public pressure to prevent, if possible, this proposal from seeing the light of day. If not it’s actually doing- notice and comment if there is a proposed rule. Or supporting the organizations like Lambda Legal, the Sylvia Rivera Law Project, the National Center for Transgender Equality, who will be fighting this in the courts and in the battles of public opinion.

And I think more importantly in the immediate future, aside from raising and elevating the voices and experiences of transgender people, people need to exercise their right to vote. There is an anti-transgender measure in Massachusetts seeking to eradicate protections that are already in the law. Voting in Massachusetts or contacting your friends in Massachusetts to say Yes on 3. Voting in the midterms, electing congresspeople who will be supportive of LGBTQ rights and the rule of law. Or even supporting transgender candidates. There’s a historic number of LGBTQ candidates on the ballot this year. We have an opportunity to have the government reflect who we are.

DHARNA NOOR: Could you talk a little bit more about the proposed policy in Massachusetts, and who some of those trans candidates are running across the country?

OMAR GONZALEZ-PAGAN: Sure. Just as an example, we had the candidate for governor of Vermont is a transgender woman. She would be the first in our history. In Massachusetts, Massachusetts enacted protections prohibiting discrimination on public accommodations, and a ballot measure has been put in place to try to erase that and eliminate that. Saying yes to those protections and saying Yes on 3 in Massachusetts would be incredibly powerful.

And you know, we have a delegate; for example, Danica Roem in Virginia. And there are a number of other candidates that are out in the ballot. I think having a government that reflects who we are, having a government that respects our diversity as a country, really is something that is important. And this is one administration that really fails at that task.

DHARNA NOOR: All right. Well, as you continue to wage the battle against this proposed change, and we continue to see what happens with the outrage across the country, we’d love to stay in touch with you. So thanks so much for coming on today. We hope to hear from you again soon.

OMAR GONZALEZ-PAGAN: Thank you so much, and thank you for the opportunity.

DHARNA NOOR: And thank you for joining us on The Real News Network.

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Dharna Noor is a staff writer at Earther, Gizmodo's climate vertical.