There is a common misconception around what gender and sex is; people often interchange them, however, they’re actually two very different things. Sex is defined as one of the two main categories into which humans and many other living things are divided on the basis of their reproductive systems. On the other hand, gender is defined as the state of being male or female with reference to social and cultural differences rather than biological ones. To put it simply, though they both define the categories a person falls in, sex is biological and gender is social and cultural.

Despite the difference in gender and sex, the Trump administration is attempting to define gender the same way sex is – on a biological basis. This means a person would not be able to change the sex they were given at birth based on their reproductive systems. This redefinition of gender would remove the government recognition and protections of transgender people and gender non-conforming people under the federal civil rights law, according to the New York Times.

Under the Obama administration, the legal concept of gender in federal programs was loosened due to a series of decisions. Some of these federal programs include education and health care. The Obama administration recognized gender as an individual’s choice, not the sex assigned at birth. Since the Obama administration’s decisions regarding gender, there have been debates over bathrooms, dormitories, single-sex programs, and other areas where gender was just one concept.

A memo obtained by the New York Times found that the Department of Health and Human Services is attempting to establish a legal definition of sex under Title IX. Title IX states that “No person in the United States shall, on the basis of sex, be excluded from participation in, denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Title IX comes from the Education Amendments of 1972 and is enforced by the U.S. Department of Education’s Office for Civil Rights (OCR).
If a legal definition of sex under Title IX is passed, gender would be determined on the same basis sex is – a biological one. This would define gender as either male or female, unchangeable, and purely determined by a reproductive system. If there is a dispute about a person’s sex, it would need to be clarified by genetic testing.