The Impacts of the Shifting Definition of Sex Under the Law

Jurist 
by Patrick Sherry
November 4, 2018

 

While transgender people have existed since the dawn of time, the last decade has seen an increasing spotlight on the community and transgender people’s right to recognition and protection. While this has taken on many different angles, federal and state administrations have come under scrutiny in the last few weeks for choices to exclude transgender people from everyday protections. In Kansas, a lawsuit was recently filed against the state actors who enforce policies that do not allow transgender people to amend their birth certificates to recognize their gender identity. At the federal level, a leaked memo obtained by the New York Times showed that the Department of Health and Human Services is working to redefine nondiscrimination provisions based on sex under Title IX to exclude transgender people.

What do these government choices mean in real life?

In Kansas, the choice not to allow transgender people to update their birth certificates means that any time a transgender person has to use their birth certificate, their transgender identity will be forcibly disclosed without their consent. So, for example, when enrolling in school, applying for or accepting a job offer, or simply trying to get other identity documents, the sex designated on a person’s birth certificate will not match their gender identity. This disclosure matters, because sadly, discrimination and harassment against transgender people is still extremely common across the world, including in the United States, and even in Kansas. According to the US Transgender Survey, a 2015 survey of over 27,000 transgender people, among those who had shown an ID with a name or gender that did not match their gender presentation, 25% reported being verbally harassed, 16% were denied services or benefits, 9% were asked to leave a  location or establishment, and 2% were assaulted or attacked. Among those who had ever held a job, one in six (16%) reported having lost at least one job because of their gender identity or expression. Therefore the choice of when, how, and to whom to disclose one’s gender identity is extremely sensitive and laden with risks.

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