Every November 20th, for the last 19 years, activists have recognized Transgender Day of Remembrance, holding vigils to commemorate the transgender people who have lost their lives to violence. In 2017, at least 29 trans people were murdered in the United States, the highest number ever recorded. According to the Human Rights Campaign, so far in 2018 at least 22 transgender people have been killed nationwide.
For many transgender people, the constant threat of deadly violence is a real one—but hardly the only form of discrimination they face. By many measures, transphobia has only worsened in recent years. On October 21, the New York Times reported that the Trump administration’s Department of Health and Human Services (HHS) is seeking to alter its interpretation of Title IX, the federal civil rights law prohibiting sex discrimination in federally-funded schools, in order to define sex as “a person’s status as male or female based on immutable biological traits identifiable by or before birth.”
According to the Times, HHS is encouraging other government agencies, including the Departments of Education, Justice and Labor, to adopt a similarly regressive definition of sex. If implemented across the board, these changes could hypothetically affect everything from equality in healthcare provision for trans people to workplace discrimination to the rights of trans youth to use the locker rooms of their choice.
Ceyenne Doroshaw, a prominent trans activist in New York City, told Gothamist that when the article came out her phone wouldn’t stop ringing. “I was getting phone calls from girls wanting to commit suicide, trans men really in vulnerable mental health states, people in the middle of transitioning, now terrified.” Part of the panic was driven by confusion, as to how and whether the proposed changes could actually affect people’s everyday lives.
It’s unclear when or if the proposed changes to the definition of sex reported by the Times will be implemented and how trans and gender-nonconforming people living in New York City and state could be affected if the Trump administration attempts to narrow the definition of sex under federal law.
Lawyers and city officials say that in order to make the proposed changes, the Trump administration would first have to marshal them through a comment and rule-making period. If that happened, the administration would then have to contend with longstanding legal precedence that protect trans people from discrimination—precedence that has already undermined the White House’s efforts to reimplement the ban on trans people on the military and reverse Obama-era protections for trans kids in school.
On Transgender Day of Remembrance we commemorate the countless lives lost to transphobic violence. At the @NYCCouncil, we’ve stepped up with unprecedented funding in support of the trans community. They are not forgotten. #TDOR https://t.co/QGovSMJWWp
— NYC Council Speaker Corey Johnson (@NYCSpeakerCoJo) November 20, 2018
“The federal courts have been clear for years, and in some cases decades, that sex discrimination includes discrimination against trans people, [and] discrimination against people base on sex stereotypes,” said Chase Strangio, Staff Attorney with the American Civil Liberties Union LGBT & AIDS Project.
Even if the changes reported in the New York Times were enacted and subsequently upheld by the courts, transgender people living in New York City would still have substantial protections under city and state law.
The New York City Human Rights Law (NYCHRL) prohibits discrimination on the basis of sexual orientation, gender and gender identity in a range of areas including employment, housing, public accommodations, discriminatory harassment, bias-based profiling by law enforcement and retaliation. The law also provides avenues for redress; for example, if an employer fails to use someone’s preferred pronoun or if an individual is restricted from accessing a sex-segregated facility consistent with their gender identity. There are also protections on the state level: New York is also one of 19 states across the nation to prohibit discrimination on the basis of gender identity. In 2015, Governor Cuomo signed an executive order to protect transgender people under the Human Rights Law, which mandates equal treatment in housing, employment and other sectors.
“I think it’s safe to say that from the state, trans New Yorkers are still protected under the law as far as public accommodation, employment, housing” and education, Erin Harrist, senior staff attorney at the New York Civil Liberties Union, told Gothamist. “Places where it might get more complicated is in the area of insurance,” she added, since both federal and state law are at play in determining those specific regulations.
But even when it comes to healthcare, trans and non-binary New Yorkers do still have some protections. The NYCHRL prohibits employers from providing insurance that does not cover transition-related care. Since 2015, Medicaid plans in New York have been required by court order to provide comprehensive treatment for people with gender dysphoria, and in September new regulations were issued to ease authorization requirements and mandate the provision of transition-related care for non-binary individuals. In June, Cuomo issued a directive to expand anti-discrimination protections for trans and gender non-conforming people who have medical insurance issued in the state, so that the equality provisions currently enshrined in the Affordable Care Act will be preserved regardless of what happens on the federal level.
Belkys Garcia is a Staff Attorney in the Civil Practice Law Reform Unit at the New York Legal Aid Society, and an expert in health law. She told Gothamist that there isn’t enough information to assess exactly how the proposed rule changes might play out on the state level, but she stressed that the many protections fought for and secured on the state level could not simply be undone with the stroke of Trump’s pen. “I have been urging people to continue to seek and get the care and fight for the insurance coverage that they need,” said Garcia. “People should feel completely safe pursuing that care.”
The results of the midterm elections could also significantly impact trans rights. For the past 11 years, the New York State Assembly has passed the Gender Expression Non-Discrimination Act (GENDA)—which would prohibit discrimination on the basis of gender identity under the state’s Human Rights Law—only to have the bill fail in in the Senate. Now that both state chambers are controlled by the Democrats, legislators are well positioned to make GENDA a reality. Kiara St. James is the co-founder and executive director of the New York Transgender Advocacy Group (NYTAG), which has been one of the key groups advocating for the passage of the bill.
“This administration has proven why executive orders can fail us,” she said in reference to the actions taken by Cuomo to protect trans New Yorkers in the face of Republican recalcitrance. “This is a civil rights bill that will enhance the lives of all New Yorkers. Everyone should have a vested interest in the success of GENDA being codified into law.”
Every Trans Day of Remembrance I think of the people I know who’ve died Bc they were trans, including by suicide and addiction. It is unconscionable that, for all the money made off our stories, we have A DAY to remind ppl to care abt our deaths. And, by and large, ppl don’t.
— Thomas Page McBee (@ThomasPageMcBee) November 20, 2018
Even if the changes proposed by Trump aren’t ultimately implemented in New York or across the country, that doesn’t mean they don’t affect trans lives. When New Yorker and ACLU attorney Chase Strangio was interviewed by Democracy Now in October, he said that what’s happening on the federal level isn’t merely a matter of policy. Also at issue is the symbolic and discursive violence being perpetrated against trans people. “It’s an ideological effort to tell people that trans existence isn’t real,” he said.
Fighting back against transphobic violence in all its forms must be a collective effort, said Oscar Dimant, a medical student living in Brooklyn. The violence against trans people “targets the most vulnerable among us, threatening our health, safety, and human dignity, and the continuation of this violence depends upon the larger group looking away and allowing it to happen—and we cannot allow this to happen,” said Dimant, who identifies as transmasculine and non-binary. “Honoring the dead means more than saying words, honoring them must include our actions.”
Tonight, the LGBTQ Community Center in Manhattan is holding a commemoration and dinner to honor “the lives of trans and gender nonconforming community members lost to oppression, stigma and violence.” The event starts at 6:30 p.m. and is free and open to the public.
Mic is hosting a forum featuring correspondent Serena Daniari alongside the ACLU’s Chase Strangio and trans model Chella Man. The event is free but space is limited; register here.The Pride Center of Staten Island will host an event that includes a movie, a memorial service, and an open mic. More details here.