The Right Was Already Waging Economic War Against Transgender People. Trump Just Went Nuclear.

Dean Spade October 25, 2018

Philadelphia's Transgender community rallied in Love Park in Center City Philadelphia before marching through downtown to demand basic human and civil rights in Philadelphia, US, on 6th October 2018. (Photo by Cory Clark/NurPhoto via Getty Images)

The Trump administration’s lat­est attack on trans peo­ple is the most ter­ri­fy­ing yet: The Health and Human Ser­vices Depart­ment is now plan­ning to estab­lish a ret­ro­grade def­i­n­i­tion of gen­der aimed at mak­ing what­ev­er gen­der is assigned at birth unchange­able, accord­ing to a memo leaked to The New York Times.

For the last 16 years, I have been involved with efforts to reduce the enforce­ment of gen­der cat­e­gories on trans peo­ple and every­one. When I start­ed doing this work in 2002, many state and local agen­cies and fed­er­al admin­is­tra­tive regimes that keep gen­der mark­er data about peo­ple didn’t have clear poli­cies, or didn’t have any pol­i­cy at all, about whether some­one could change their gen­der mark­er, or even what evi­dence or doc­u­men­ta­tion the gen­der mark­er on someone’s records or ID is based on. As trans legal orga­ni­za­tions began to emerge in the ear­ly 2000s, we worked to iden­ti­fy ways to reduce the harms trans peo­ple face because of gen­der norm enforcement.

As a pover­ty lawyer work­ing at the Sylvia Rivera Law Project, I saw this harm in my clients’ lives. One client was kicked out of school when she and her friend showed up dressed as women, com­ing out to their peers and teach­ers. Anoth­er client had her wel­fare ben­e­fits ter­mi­nat­ed when she showed up at her manda­to­ry work­fare” assign­ment because the super­vi­sor marked her as absent, say­ing she wasn’t work ready” if she dressed as a woman. Anoth­er client need­ed place­ment in a domes­tic vio­lence shel­ter but the shel­ters would not admit her because she was trans. One client was con­vict­ed on a drug charge and want­ed to serve part of it in the drug treat­ment pro­gram, but the pro­gram would not take him because he was trans.

Home­less women clients com­plained they couldn’t go into the home­less shel­ter sys­tem because they would be placed at a men’s intake shel­ter where they knew they would be tar­get­ed with vio­lence. Because they could not go into an intake shel­ter, they would not be able to get into oth­er hous­ing ser­vices avail­able after that ini­tial stage.

Many clients were try­ing to get ID that had a gen­der mark­er that matched their life and would not expose them as trans every time they had to show it to a prospec­tive employ­er or a cop. Many clients were hav­ing their med­ical needs reject­ed by Med­ic­aid because of their gender.

Over­all, my clients were being kept out of ser­vices they need­ed, blocked from employ­ment, and exposed to greater dan­ger of dis­crim­i­na­tion and vio­lence because of the ways that gen­der mark­ers get record­ed on our IDs and used to divide peo­ple up in sex-seg­re­gat­ed facilities.

Over the last two decades, advo­cates have worked hard to change these poli­cies and have won some vic­to­ries. In some cities, home­less shel­ters now have poli­cies that say they have to let trans women into women’s shel­ters. In some places, Depart­ment of Motor Vehi­cles offices have adopt­ed poli­cies so that a trans per­son does not have to prove any­thing about their gen­i­tals to get their ID changed on a state-issued ID, such as a driver’s license. Many uni­ver­si­ties have cre­at­ed all-gen­der bath­rooms so that peo­ple can use the bath­room with­out being harassed because some­one per­ceives them to be in the wrong” place. In some juris­dic­tions, Med­ic­aid exclu­sions of trans health care have been removed.

Most of these improve­ments are just at their very begin­nings. In many cities with trans-friend­ly poli­cies about shel­ter place­ment, staff still deny trans women access because they do not know the poli­cies or do not want to enforce them. And most cities and coun­ties still don’t have clear poli­cies about trans access to shel­ters or oth­er social ser­vices or any train­ing for staff about not dis­crim­i­nat­ing against trans peo­ple. ID poli­cies have improved in some places, regard­ing some pieces of iden­ti­fi­ca­tion, but IDs with appro­pri­ate gen­der mark­ers are still out of reach for many peo­ple because they require doc­tors’ let­ters and many trans peo­ple do not have access to health care or to a friend­ly doc­tor. Thir­ty-one per­cent of trans peo­ple in the US lack access to any reg­u­lar health care. Trans women are still, with very few excep­tions, placed in men’s pris­ons and jails.

Trans peo­ple are dis­pro­por­tion­ate­ly poor, espe­cial­ly trans peo­ple of col­or. The poor­er you are, the more like­ly your sur­vival is at the mer­cy of bureau­crats and low-lev­el staff in pris­ons, shel­ters, hos­pi­tals, group homes and wel­fare offices who can make deci­sions about your gen­der regard­less of what the law says or does not say. Being poor also means you are less like­ly to have access to a state ID or med­ical doc­u­men­ta­tion to fight these deter­mi­na­tions. It would be mis­lead­ing to say that trans advo­cates have even scratched the sur­face of these prob­lems in the last two decades of esca­lat­ing work on these poli­cies and prac­tices. We have made begin­nings, and we have reduced some harms to some peo­ple who live in some places, but the most vul­ner­a­ble peo­ple in our com­mu­ni­ties — peo­ple of col­or, poor peo­ple, peo­ple with dis­abil­i­ties, peo­ple in pris­ons and immi­grants — still face life-short­en­ing enforce­ment of the gen­der bina­ry through all kinds of admin­is­tra­tive systems.

And now comes the news that the Trump admin­is­tra­tion is work­ing on a strat­e­gy to estab­lish a ret­ro­grade def­i­n­i­tion of gen­der aimed at mak­ing what­ev­er gen­der is assigned at birth unchange­able. The Health and Human Ser­vices Department’s leaked memo leaves a lot of ques­tions unan­swered, and there will be many bat­tles ahead of us as we work to fight any poli­cies the agency attempts to roll out. How­ev­er, even the rumors of such a pol­i­cy will be enough to stir increased trans­pho­bic action by low-lev­el staff and bureau­crats at shel­ters, wel­fare offices, DMVs, schools and oth­er places where peo­ple have the pow­er to make trans peo­ples’ lives dif­fi­cult and dangerous.

For poor peo­ple sub­ject to the whims of hos­tile sys­tems, there is always a big gap between how sys­tems are sup­posed to work on paper, and what hap­pens in real life. When Trump was elect­ed, even before his admin­is­tra­tion had actu­al­ly changed any immi­gra­tion poli­cies or prac­tices, my immi­gra­tion lawyer friends report­ed that their clients were get­ting increased lev­els of bad treat­ment and harsh rul­ings in deten­tion cen­ters and immi­gra­tion courts. When trans­pho­bia gets bol­stered by sig­nals from the fed­er­al gov­ern­ment, low-lev­el enforcers of gen­der norms feel even more license to humil­i­ate and exclude trans peo­ple. We should assume that con­di­tions are already worse than they were, in mate­r­i­al terms, for vul­ner­a­ble trans peo­ple, before the memo was leaked to The New York Times.

The Trump administration’s plans to rede­fine gen­der for admin­is­tra­tive pur­pos­es are a seri­ous threat to trans peo­ple. In areas where there has not been a clear def­i­n­i­tion or pol­i­cy regard­ing how gen­der is estab­lished or changed, these plans could cre­ate a norm that keeps trans peo­ple out of basic ser­vices and makes us more vul­ner­a­ble to dis­crim­i­na­tion and vio­lence. In areas where advo­ca­cy has led to improved poli­cies, it could roll those back. Trans peo­ple could see renewed and enhanced bar­ri­ers in health care, edu­ca­tion, employ­ment, ID and oth­er key areas.

The administration’s attack should be under­stood not only as an attack on trans peo­ple, which it is, but also as part of a broad­er, ter­ri­fy­ing approach to race, gen­der and author­i­ty that char­ac­ter­izes the entire pres­i­den­cy. This memo shows how the admin­is­tra­tion aims to enhance the sig­nif­i­cance of legal gen­der and estab­lish nar­row def­i­n­i­tions to enforce it, which is part of a broad­er agen­da to roll back fem­i­nist reforms. One of the most fun­da­men­tal asser­tions of fem­i­nism is that the mean­ing of gen­der cat­e­gories is social­ly con­struct­ed and enforced through norms, and that gen­der assign­ments should not deter­mine how and what peo­ple can be, and do.

The Health and Human Ser­vices memo leak is aligned with a broad­er patri­ar­chal and author­i­tar­i­an ide­ol­o­gy about enforc­ing a gen­dered world­view that con­strains every­one, espe­cial­ly those most touched by state sys­tems that tar­get and con­trol the lives of poor peo­ple and peo­ple of col­or. This new move dove­tails with the administration’s work to embold­en and expand resources to the mil­i­tary, police and immi­gra­tion enforce­ment. All of this strength­ens the vio­lent enforce­ment of race, gen­der and class hier­ar­chies in our lives. All of them will direct­ly result in increased sex­u­al and gen­der vio­lence in the lives of the poor­est people.

Many peo­ple feel ter­ri­fied of the con­tin­u­ing roll­out of the administration’s poli­cies. We fear for our­selves and our loved ones. Just vot­ing, or send­ing mon­ey to orga­ni­za­tions we hope will win law­suits against the admin­is­tra­tion, feels inef­fec­tive, slow and too pas­sive for many of us. Watch­ing it all unfold in the head­lines and feel­ing help­less is dri­ving a lot of peo­ple into depres­sion and des­per­a­tion. Now is the time to help each oth­er out with the basic neces­si­ties that the gov­ern­ment is more and more effec­tive­ly elim­i­nat­ing, and to sup­port every­one who is caught in the crosshairs of the expand­ed tar­get­ing. Now is the time to start and join effec­tive mutu­al aid projects that do these two things.

What does mutu­al aid look like at this time? If we know trans women are being sent to men’s pris­ons, and all trans pris­on­ers are vul­ner­a­ble to vio­lence, med­ical neglect and iso­la­tion, it looks like becom­ing pen pals with a trans pris­on­er through the lists pro­vid­ed by Black and Pink’s prison pen pal pro­gram. Becom­ing pen pals with a pris­on­er can reduce the like­li­hood they will be tar­get­ed, help them have emo­tion­al sup­port through the tar­get­ing, and help them plan and find resources for when they are released. If we know the administration’s poli­cies will fur­ther exclude trans peo­ple from home­less shel­ters and hous­ing pro­grams, we can work to cre­ate com­mu­ni­ty hous­ing-shar­ing pro­grams. We can form groups that plan hous­ing stays for trans peo­ple com­ing out of prison or aging out of fos­ter care, to help peo­ple tran­si­tion to sta­ble hous­ing as they find work or get ben­e­fits access in order to help address trans home­less­ness. Mutu­al aid can also include accom­pa­ni­ment pro­grams so that peo­ple don’t have to go to court or doctor’s appoint­ment or on pub­lic trans­porta­tion alone. We can cre­ate child care shares, bail funds, ride ser­vices for peo­ple vis­it­ing pris­on­ers and vol­un­teer chores ser­vices for peo­ple who are sick or disabled.

We are in a very des­per­ate time. Gov­ern­ment agen­cies have always enforced laws and poli­cies in ways that have endan­gered mar­gin­al­ized groups, but the Trump admin­is­tra­tion is ramp­ing this up on all fronts. Many peo­ple have felt pow­er­less, watch­ing the Kavanaugh con­fir­ma­tion to the Supreme Court, the pass­ing of the out­ra­geous defense bud­get, the ongo­ing attacks on immi­grants and impris­on­ment of migrant chil­dren, pipeline expan­sion and more. It is espe­cial­ly impor­tant in these moments to con­nect to what we can do, in our imme­di­ate sur­round­ings, to sup­port the peo­ple most harmed by these devel­op­ments, and to strength­en com­mu­ni­ty ties and fight iso­la­tion by fig­ur­ing out prob­lems and meet­ing needs togeth­er. Trump’s attacks are not slow­ing down, and we all have skin in the game. This is the moment to turn our fear and rage into imme­di­ate action to sup­port the sur­vival of every­one in our com­mu­ni­ties — includ­ing trans peo­ple — whose exis­tence is threatened.

This sto­ry was orig­i­nal­ly pub­lished on Truthout.

Dean Spade is an Pro­fes­sor at Seat­tle Uni­ver­si­ty School of Law. His book, Nor­mal Life: Admin­is­tra­tive Vio­lence, Crit­i­cal Trans Pol­i­tics and the Lim­its of Law was pub­lished in 2015 by Duke Uni­ver­si­ty Press.
Limited Time:

SUBSCRIBE TO IN THESE TIMES MAGAZINE FOR JUST $1 A MONTH