On Sunday, the New York Times reported it had obtained a memo revealing that the Department of Health and Human Services may move to define gender in binary male-female terms based solely on one’s genitalia at birth. The Obama administration, acknowledging the approximately 1.4 million transgender people living in America, had previously revised federal programs in keeping with the medical fact that gender identity is distinct from the sex a person is assigned at birth. The proposed changes would most immediately apply to Title IX, a civil rights law that prohibits gender discrimination in education programs, and effectively erase protections for—and even recognition of—transgender people under federal law.
It remains to be seen, however, if these proposals will actually be enacted. Neither the Department of Health and Human Services nor the Department of Education have commented publically on the memo. While the plans outlined in Sunday’s news are undoubtedly worrisome for transgender people and their allies, it’s important to remember that leaked memos don’t always come to fruition and that there are many ways that recommendations are stopped from becoming reality.
In fact, the Trump administration has a somewhat spotty record of executing the plans espoused in draft memos that have been leaked to the press. For example, in early 2017, journalists got ahold of a draft executive order that would have rolled back a variety of Obama-era protections for LGBTQ people in federal workplaces and at adoption agencies. LGBTQ groups were alarmed at the prospect and advocated strongly against it. According to Politico, Jared Kushner and Ivanka Trump led a campaign to scuttle the plans, and the White House eventually issued a statement distancing itself from the draft. The White House also claimed that the order had no chance of reaching the president’s desk, regardless of his daughter and son-in-law’s supposed pushback.
The path from memo to concrete policy is long and winding, and it’s worth considering the obstacles that a proposal would have to surmount to be adopted. In some cases, the memos likely become public because an insider (or insiders) want to encourage the public to advocate against the recommendation. In other cases, the leak could be a trial balloon from the administration, a way to check the reaction before implementing a policy change. Leaked memos are, in essence, a projection of what could happen if no one bothers to stop it.
The courts have also stepped in to undercut decisions originally detailed in these leaked documents. In October 2017, Buzzfeed and a number of other news outlets obtained a memo from Attorney General Jeff Sessions reversing federal Title VII protections against transgender discrimination in the workplace. A federal appeals court ruled this March, however, that a Michigan funeral home did not have the right under Title VII to fire an employee for her decision to transition from male to female, directly contradicting Sessions’s position. The decision currently only applies to Kentucky, Michigan, Ohio, and Tennessee, though it could eventually have wider implications. Lawyers for the funeral home and sixteen states are asking the Supreme Court to take up the case, which could determine whether this interpretation of Title VII is valid on a national level.
To be sure, the Trump administration has seen fewer hurdles in following through on other draft memos, and the plans they describe in many cases could still come to fruition. In August 2017, for instance, the New York Times reported on a memo indicating that the Justice Department was looking to recruit lawyers to investigate universities for proof of anti-white bias as a result of affirmative action. The department later responded to the report by claiming that it would be looking into a complaint of discrimination against Asian Americans in college admissions. The DOJ subsequently launched an investigation into Yale University’s admissions and issued an amicus brief in support of Asian American plaintiffs who are currently suing Harvard. The courts could still impede this assault on affirmative action—the case against Harvard has yet to be decided—but the administration’s efforts have thus far received little resistance from the judicial branch.
In June, Vox secured another memo drafted by Sessions for a plan to overhaul U.S. asylum policy. The attorney general, according to the memo, would recommend changes that would penalize Central Americans who do not seek asylum in Mexico, make it virtually impossible for victims of gang or domestic violence to receive asylum, withhold asylum from anyone arrested for entering the U.S. illegally, and generally harden the asylum system. The proposals could still change and have not yet been posted to the Federal Register, where the public can submit comments, but nothing in the initial reporting suggests that there has been any internal pushback.
These leaked documents are useful for revealing the general direction of policymaking and how administration officials think about certain hot-button issues . But they often lack the context or predictive power for us to determine how policies will necessarily play out. The recommendations and plans contained within these memos are rarely set in stone. There is often still room for the courts and advocates to stop them.
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