The Trump administration’s recent and ongoing actions to do away with protections for and legal recognition of people who do not identify with their medically assigned gender at birth, or who know their gender as nonbinary, are unacceptable and inhumane.
These changes would represent a willful rejection of a growing body of multi-aspectual scholarship in many fields that documents the ways in which “gender” is a complex historical and contextual configuration that goes well beyond normative definitions and external, biological sex. The proposed policies also ignore the documented damages caused to individuals by holding them to a sex they do not identify with. Trans and nonbinary individuals should not be used as pawns in a political game between the left and the right.
We have seen some positive changes to the challenges faced by nonbinary individuals. One example is the adoption of a resolution rejecting the binary definition of gender being either male or female. In June 2017, the American Medical Association asserted instead that gender identity, phenotypic sex and genotypic sex do not always align with one another. The AMA explicitly notes that the imposition of a strict “male/female” binary sex approach to gender harms people who do not experience gender as fixed at one of the two normative social positions — man or woman — as well as those who believe their gender was misassigned at birth.
This new perspective has informed public policies. The Obama administration’s efforts to include transgender as a federally protected category in cases of employment discrimination and educational equality and to assign prisoners to institutions based on gender identity, reflected this body of scholarship. Similarly, California recently passed into law the right of individuals to change their legal gender on state identification documents from that assigned at birth to their self-identified gender or to nonbinary by submitting a simple affidavit.
In contrast to these progressive resolutions, the Trump administration’s Department of Health and Human Services has considered defining gender as either female or male, unchangeable, and determined at birth. The process for this determination depends on the “evidence” of what are presumed to be, or are forcibly seen as, distinctly male or female genitalia. The sex listed on a person’s birth certificate could be contested only by genetic “evidence” of a mismatch between chromosomal configuration XX or XY (presented in the memo’s language as the only two possibilities, despite several possible configurations of X and Y in an individual’s genome) and the recorded (binary) sex determination.
This proposal represents a stark contrast to recent policy changes made to recognize the needs of gender nonbinary, transgender and intersex individuals. It is part of an ongoing legal battle, in policy and judicial rulings, over whether the protection of “sex” in civil rights legislation includes gender identity.
Already the reports of the potential changes have unsettled gender nonbinary and transgender students, staff and faculty here on campus; if the proposed changes go through, this will have a significant effect on how the university can handle Title IX protections, as well as the ways transgender and nonbinary students access rights and resources.
The proposed changes in the definition of “sex” will have concrete effects on people, but the proposal may have been made with another goal in mind. Like other polarizing issues (gun control and abortion rights being the most commonly raised), this topic divides Americans into two camps: those who are open to new information about gender and gender conservatives. The damages done to gender nonbinary and transgender individuals are collateral damage in a political campaign to construct party-line voters based on emotional reactions to inflammatory issues rather than informed considerations of the dull work of thinking about infrastructure, foreign affairs, tax rates, educational programs, etc.
We place this issue in a broader context of attacks against the academic study of gender and sexuality. Across the globe, we observe a polarized trend: On the one hand, there is a proliferation of gender studies programs and departments in some parts of the world, and on the other, right-wing governments and groups are shutting down existing gender studies programs. We are particularly concerned about attacks on the gender scholarship by governments in Brazil and Hungary.
UC Berkeley’s research on gender and sexuality has contributed to our understanding of how gender and sex are entwined notions and how the production of genders engages layers of personal experience, institutions, relations of power, and shifting hierarchies and opportunities. These are not simple issues, but they are also not issues without extant research, scholarship and analysis. Policies that engage and affect gender must look to scholarship as a guide on best practices.
Can you imagine formulating economic policy without including knowledge and expertise in the field of economics to argue and reason through policy alternatives?
Policies on gender and sexuality should, at the very least, reference what is known about gender and sexuality. Instead, we find a dangerous trend to silence gender researchers and erase from legal existence the gender experience and identities of millions of individuals. We recognize that students on this campus will take leadership roles in many contexts while they are here and after they graduate; we encourage all students to learn about the complexities of gender while they are at UC Berkeley and to demand that all policies that impact gender reflect substantial research and knowledge, not mere ideology.
Paola Bacchetta, Mel Chen, Minoo Moallem, Laura Nelson, Leslie Salzinger, Eric Stanley, and Trinh Minh-ha are faculty members in the department of gender and women’s studies.