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SF mayor issues transgender directive

by Matthew S. Bajko and Cynthia Laird

Mara Keisling, executive director of the National Center for Transgender Equality, speaks at a rally outside the White House Monday. Photo: Rudy K. Lawidjaja
Mara Keisling, executive director of the National Center for Transgender Equality, speaks at a rally outside the White House Monday. Photo: Rudy K. Lawidjaja  

San Francisco Mayor London Breed Thursday morning ordered all city agencies and departments that collect demographic data to update their forms, both paper and electronic, so that they include the option of nonbinary in addition to male and female when asking about gender identity.

The mayoral directive, which took effect immediately, also ordered that the forms expand on title options beyond Mr. and Ms. and include additional choices for pronouns other than just she/her/hers and he/him/his. The forms must also include a line for a person's chosen name and use gender-neutral labels such as "parent/guardian" instead of "father" and "mother."

The order by Breed came in response to media reports earlier this week that the Trump administration is preparing a proposal to limit the identification of a person's gender to include only "male" or "female" that is listed at birth.

"Identity is complex and personal," Breed noted at the start of the directive, a copy of which was given to the Bay Area Reporter Wednesday. "Too often, transgender and gender-nonconforming communities are forced to make choices on City and County of San Francisco forms and applications which do not accurately reflect their identity or gender expression. We know that narrow gender definitions of either male or female are not sufficient to recognize the diverse experiences of our communities."

As the B.A.R. detailed in a three-part series last summer, six city departments began using forms in 2017 that asked questions about sexual orientation and gender identity, SOGI for short, due to a law implemented by city leaders. LGBT advocates had pressed for the collection of such data to gain better insight into the health needs and other issues confronting the LGBT community.

The information, they argued, was needed in order to ensure there was adequate funding for programs and services that address the needs of the LGBT community. State lawmakers followed suit by also ordering a number of California departments and agencies focused on health care and social services to begin collecting SOGI data as of this July. Additional state agencies will begin asking the SOGI questions on their forms next year.

In her directive, Breed noted that the San Francisco sheriff's office has also "taken the lead in expanding self-identification of gender identity, by allowing individuals to self-identify, and has instituted gender awareness training as an integral part of its practices."

As part of her directive, Breed ordered the city's Department of Human Resources and the Office of Transgender Initiatives to provide gender identity trainings to city employees as part of their required trainings on harassment prevention, implicit bias, and cross-cultural communications.

The city has adopted various policies to promote "inclusionary practices," noted Breed. "However, to be truly effective, we must strive to practice inclusivity at all times and to assure that everyone can live as their authentic self. Something that may appear to be a single city application or form, but does not account for the full range of self-identifiers, can trigger an emotionally stressful experience for individuals who do not fall into narrow, pre-set identity categories."

Breed's directive is the polar opposite of the proposal being considered by the Trump administration, which was first reported by the New York Times Sunday, October 21. LGBT advocates contend the proposal, if enacted, would erase transgender people from federal recognition.

The Times did not include the full text of the proposal or any indication of what office or person drafted it. But such a proposal would not be out of character in the Trump administration, based on previous maneuvers by officials.

Transgender legal and community leaders and LGBs reacted swiftly and harshly this week to the proposal. A rally was held in Washington, D.C. Monday, where people gathered in front of the Human Rights Campaign's offices and marched to the White House.

Mara Keisling, executive director of the National Center for Transgender Equality, said the proposal would be "effectively abandoning" the right of two million transgender people to "equal access to health care, to housing, to education, or to fair treatment under the law."

Keisling addressed the crowd at Monday's march, and held up a list of trans people who said they "wouldn't be erased."

In San Francisco, Breed and Clair Farley, director of the city's transgender office, released a joint statement condemning the president and his administration.

"This is a bigoted and hateful attempt to strip away over two million transgender people's equal access to health care, housing, education, and fair treatment under the law," they said. San Francisco will continue to resist draconian attempts to strip away human rights, by joining local and statewide efforts to ensure that our laws, policies, and programs reflect the lived realities of transgender and gender-nonconforming communities."

Breed, who was sworn in as San Francisco's 45th mayor in July, told LGBT community leaders at a reception Monday that "just yesterday, that other 45 announced another attack on our transgender community," referring to President Donald Trump.

Kris Hayashi, executive director of the Oakland-based Transgender Law Center, said in a statement that previous court rulings "have made clear that transgender and gender-nonconforming people are protected from discrimination under federal civil rights laws and the U.S. Constitution."

"To be clear: nothing this administration can do will undermine the scores of federal courts that have recognized our humanity and hundreds of state and local legal protections we've already won," Hayashi added.

Rea Carey, executive director of the National LGBTQ Task Force, was blunt.

"Trump is too late," she said in a statement. "We are not going back to a time when transgender people were in the closet, were ignored, or excluded. As a society and as a community, we have already moved on. We are here and not going anywhere."

Equality California Executive Director Rick Zbur said the Trump administration "has launched a full-scale war against millions of transgender and gender-nonconforming people across our nation by proposing sweeping new regulations across our government that would require discrimination."

As Trump was preparing to board Marine One on the White House lawn Monday afternoon, reporters asked him what happened to his promise to protect transgender Americans.

"We're looking at it," said Trump. "We have a lot of different concepts right now. They have a lot of different things happening with respect to transgender right now. You know that as well as I do. And we're looking at it very seriously."

When a reporter pressed again to explain what happened to his campaign promise to "protect the LGBTQ community," Trump just kept repeating, "I'm protecting everybody."

Steps taken
The Trump administration has taken a number of steps aimed specifically at ending recognition of transgender people under federal law.

In July 2017, Trump announced his plans to ban transgender people from the military. Last October, Attorney General Jeff Sessions issued a memo to declare that federal law prohibiting discrimination based on sex in employment does not prohibit "discrimination based on gender identity, per se." Last December, reports emerged that the Trump administration banned budget documents from the Centers for Disease Control and Prevention from using the word "transgender." At HHS, the administration removed from at least two federal health surveys questions that would identify data specific to LGBT people. It also announced it would no longer interpret the Affordable Care Act to prohibit discrimination based on gender identity.

In May 2016, HHS, under then-President Barack Obama, issued regulations stating that the Affordable Care Act's prohibition on discrimination in health coverage and care includes a prohibition on discrimination based on gender identity. ACA Section 1557 prohibits discrimination in health care on the basis of race, color, national origin, sex, age, and disability. The HHS rules under the Obama administration change stated that discrimination based on "gender identity" is a form of discrimination based on sex. The final regulations defined "gender identity" as "an individual's internal sense of gender" and noted that this "may be male, female, neither, or a combination of male and female." And it defined "transgender identity" to be when gender identity is different from the person's physical sex attributes at birth.

The Wall Street Journal reported that HHS's proposed draft was aimed at ensuring the ACA would no longer include non-discrimination language on gender identity and would seek to apply a similar restriction in other federal laws, such as Title IX of the Education Amendments Act, barring sex discrimination in education. But, according to the Journal, the Department of Education, including Secretary Betsy DeVos, has resisted adopting the HHS proposal.

The Journal said the Department of Education will be publishing its proposed interpretation of Title IX "within weeks," in regards to how schools should handle sexual assault allegations. HHS's proposal could be released "at anytime."

Jennifer Levi, director of Gay & Lesbian Advocates & Defenders' Transgender Project, said she hasn't seen the memo and hasn't been included in the meetings with the administration to discuss proposed changes. She said it may be a variation of the Sessions memo.

"But [it] also could be the roll-out plan, including details about how to start implementing, to reverse the work of the last administration to define sex to include gender identity and transgender people," said Levi. "And given that everyone has been expecting HHS proposed revised regulations to drop, that would be consistent."

NCTE's Keisling vowed to fight the proposed HHS rule change, and said she does not think it can undo rulings from "dozens of federal courts over the last two decades affirming the full rights and identities of transgender people."

"It would not undo the consensus of the medical providers and scientists across the globe who see transgender people, know transgender people, and urge everyone to accept us for who we are," said Keisling. "And no rule — no administration — can erase the experiences of transgender people and our families."

Such proposed changes are typically published in the Federal Register with a notice that the public has 30 to 60 days to comment. The department proposing the change is then supposed to study public comment before publishing the final regulations.

Caitlin Oakley, a spokeswoman for the HHS media office, would not provide a copy of the draft proposal and said the department does not comment "on alleged documents."

She shared a quote from HHS's director of the Office of Civil Rights, Roger Serevino. The quote said: "A federal court has blocked HHS's rule on gender identity and termination of pregnancy as contrary to law and infringing the rights of health care providers across the country. The court order remains in full force and effect today and HHS is abiding by it as we continue to review the issue."

Serevino was apparently referring to a federal district judge's ruling in Forth Worth, Texas, in August 2016. The judge issued a nationwide injunction against the Obama administration's "Dear Colleague Letter on Transgender Students." The letter said Title IX "encompasses discrimination based on a student's gender identity...." The judge said, "It cannot be disputed that the plain meaning of the term sex as used in [Title IX] meant the biological and anatomical differences between male and female students as determined at their birth." But in applying the injunction nationwide, Judge Reed O'Connor added that litigation of the issue in other federal courts should proceed and that states that do not want to be covered the injunction "can easily avoid doing so by state law...."

But Lambda Legal Defense and Education Fund said the HHS proposal "willfully ignores the long line of federal cases protecting transgender people. ..."

"For years, courts across the country have recognized that discriminating against someone because they are transgender is a form of sex discrimination," said Diane Flynn, Lambda Legal litigation director. "If this administration wants to try and turn back the clock by moving ahead with its own legally frivolous and scientifically unsupportable definition of sex, we will be there to meet that challenge."

Shannon Minter, legal director for the National Center for Lesbian Rights, said federal courts "have interpreted sex discrimination laws broadly for decades in order to ensure that all forms of sex-based discrimination are prohibited, including discrimination against transgender people."

"This proposal is out of step with long-standing legal precedent and would create havoc in federal agencies, which are charged with enforcing the law and cannot simply disregard binding legal decisions," Minter added. "And no matter what this administration orders federal agencies to do, the courts still have the authority to interpret these laws and will continue to protect transgender people."

On the current HHS.gov website, the department still indicates, "HHS has issued a policy explicitly requiring employees to serve all individuals who are eligible for the department's programs without regard to any non-merit factor, including race, national origin, color, religion, sex, sexual orientation, gender identity, disability (physical or mental), age, status as a parent, or genetic information."

Its Equal Employment Opportunity policy states, "HHS has updated its equal employment opportunity policy, which already prohibited discrimination based on sexual orientation, to explicitly protect against unfair treatment of employees and applicants for employment based on gender identity and genetic information."

Lisa Keen contributed reporting.

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