Response to the HHS Memo on the Definition of Sex

Statement from the Harvard Law LGBTQ+ Community and Allies Regarding the Department of Health and Human Services’s Memo on the Definition of Sex

As students and alumni of Harvard Law School, we strongly condemn any effort to promulgate a legal definition of sex that would dismantle federal recognition of transgender individuals.

On October 21, 2018, the New York Times reported that the Department of Health and Human Services (HHS) is spearheading an effort to establish a legal definition of sex under Title IX. HHS proposed that key government agencies should adopt an explicit and uniform definition of sex that is either male or female, unchangeable, and determined by the genitals that a person is born with. Any dispute about a person’s sex would be resolved through genetic testing. Such a definition would eradicate federal recognition of the estimated 1.4 million transgender Americans. HHS’s memo flies in the face of what gender is, and disrespects the experience of transgender individuals.

This is the Trump-Pence Administration’s latest attempt to turn the tide of progress back against the LGBTQ community. In particular, the administration is laser-focused on harming the trans community. The Departments of Education and Justice rescinded a guidance that clarified trans students’ right to equal access to education, turning a blind eye to widespread anti-trans discrimination in schools. The President re-instituted the (still illegally enforced) trans military ban. The Department of Health and Human Services is rolling back regulations affirming transgender people’s right to access healthcare without discrimination. The Senate just confirmed Eric Dreiband, who represented the University of North Carolina in a lawsuit against the school’s decision to enforce a law that restricted bathroom access for trans people, as the head of the Department of Justice Civil Rights Division. The President’s religious liberty executive order and the Department of Justice’s religious liberty task force have placed cross hairs on all our hard-fought gains in pursuing marriage equality and combating job discrimination. The Department of Justice sided with the baker who refused to bake a cake for a gay couple, denigrating the experience of all LGBTQ individuals who lack equal treatment under the law. That baker is now refusing to serve transgender people. By removing all mention of LGBTQ people from the White House website and from the upcoming census, the President is attempting to erase us and our relevance. Meanwhile, transgender women of color continue to be murdered at astonishingly high rates.

But trans people #WontBeErased. We ask the LGBTQ community and our allies to take a stand against the Executive’s latest affront to trans rights. Join us on Sunday, October 28 at noon to make signs and travel to a Boston-wide rally in support of trans rights. Call your Congressional representatives expressing concern about the HHS memo. Turn up on Tuesdays to phonebank against a ballot initiative to repeal transgender nondiscrimination rights in Massachusetts, and vote Yes on 3 on election day. Finally, never forget to speak out against transphobia whenever and wherever you hear it–among your family, your friends, or in the Harvard Law classroom and community. Silence is death.

We remind you of the words of Judge Davis’s moving concurrence in the Gavin Grimm case. “Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals—Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few—who refused to accept quietly the injustices that were perpetuated against them. It is unsurprising, of course, that the burden of confronting and remedying injustice falls on the shoulders of the oppressed. . . . [This] is about much more than bathrooms. It’s about a boy asking his school to treat him just like any other boy. It’s about protecting the rights of transgender people . . . and not forcing them to exist on the margins. It’s about governmental validation of the existence and experiences of transgender people, as well as the simple recognition of their humanity. [This] is part of a larger movement that is redefining and broadening the scope of civil and human rights so that they extend to a vulnerable group that has traditionally been unrecognized, unrepresented, and unprotected.” G. G. v. Gloucester Cty. Sch. Bd., 853 F.3d 729, 730 (4th Cir. 2017), as amended (Apr. 18, 2017) (emphasis added).


In solidarity,

Harvard Law School Lambda

Queer & Trans People of Color

Advocates for Education

Advocates for Human Rights

HLS American Civil Liberties Union

HLS American Constitution Society

Animal Law Society

Asia Law Society

Asian Pacific American Law Students Association

Harvard Black Law Students Association

HLS Brazilian Studies Association

Campaign for Political Equality

Canadian Law Students Association

Child & Youth Advocates

Harvard Civil Rights-Civil Liberties Law Review


HLS Democrats

Effective Altruism

Environmental Law Society

First Class Law Students Association

Harassment Assault Law-Student Team

Health Law Society

Harvard Immigration Project

International Arbitration Law Students Association

Jewish Law Students Association

Harvard Journal of Law & Gender

Korean Association of HLS

La Alianza

Labor and Employment Action Project

Harvard Latinx Law Review

Law and International Development Society

Law and Technology Society

Harvard Law & Policy Review

Middle Eastern Law Students Association

Muslim Law Students Association

National Lawyers Guild – HLS Chapter

Native American Law Students Association

Harvard Negotiation Law Review

Pipeline Parity Project

Prison Legal Assistance Project

Progressive Jewish Alliance

Project No One Leaves

Recording Artists Project

South Asian Law Students Association

Street Justice Coalition (formerly Homelessness Coalition)

Student Mental Health Association

Tenant Advocacy Project

Harvard Law Student Alliance for Reproductive Justice

Unbound: Harvard Journal of the Legal Left


West Coast Club Board of Directors

Women’s Law Association


(last updated November 5, 2018 at 1:57 pm)