Seeking a legal U.S. definition of gender "on a biological basis that is clear, grounded in science, objective, and administrable," the Department of Health and Human Services proposes legal gender be male or female as determined by genitalia at birth, according to The New York Times.
The report cites a HHS memo looking for clarity on a gender definition under Title IX, the federal civil rights law banning gender discrimination in education programs that received federal funds.
"Sex means a person's status as male or female based on immutable biological traits identifiable by or before birth," according to the memo obtained by the Times. "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."
There are 1.4 million Americans who recognize themselves transgender, according to the Times. Those who challenge the government definition legally would have to submit to genetic testing, according to the report.
The timing of the report suggests transgender rights will be a Democratic campaign hot button before the November midterms.
The Obama administration recognized transgender people under Education Department's Officer for Civil Rights director Catherine Lhamon, who rejects the proposal, which "quite simply negates the humanity of people," she told the Times.
"This takes a position that what the medical community understands about their patients — what people understand about themselves — is irrelevant because the government disagrees," she added to the Times.
The current director of the Health Department's Office for Civil Rights Roger Severino is a conservative and a longtime critic of the Obama-era transgender moves, once rebuking "radical gender ideology" as a "culmination of a series of unilateral, and frequently lawless, administration attempts to impose a new definition of what it means to be a man or a woman on the entire nation," according to the Times.
If HHS defines sex the way it proposes, the Justice Department might leave the final say for the Supreme Court after, according to a memo from a coalition of civil rights groups, "the overwhelming majority of courts to address the question since the most relevant Supreme Court precedent in 1998 have held that antitransgender bias constitutes sex discrimination under federal laws like Title IX."
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