A New York Times report this week revealed that the Trump administration’s assault on trans­gen­der, non-bina­ry and inter­sex peo­ple has esca­lat­ed. Accord­ing to a memo cir­cu­lat­ing since last spring and recent­ly obtained by the Times, the Depart­ment of Health and Human Ser­vices (HHS) is at the helm of an effort to define gen­der as either male or female, immutable and deter­mined by the sex assigned at birth — a move that would dra­mat­i­cal­ly roll back pro­tec­tions and recog­ni­tion of peo­ple who fall out­side the gen­der bina­ry. The legal def­i­n­i­tion would fall under Title IX, the fed­er­al law that bars gen­der dis­crim­i­na­tion in gov­ern­ment-fund­ed edu­ca­tion programs.

The change marks the lat­est devel­op­ment in the administration’s cam­paign to revoke pre­ex­ist­ing U.S. gen­der-recog­ni­tion poli­cies, par­tic­u­lar­ly regard­ing employ­ment. In 2017, Trump rescind­ed an Oba­ma-era exec­u­tive order designed to restrict dis­crim­i­na­tion against LGBTQ employ­ees of fed­er­al con­trac­tors. That same year, Attor­ney Gen­er­al Jeff Ses­sions argued that the Civ­il Rights Act of 1964, a fed­er­al work­place-equi­ty law, did not pro­tect trans­gen­der work­ers from dis­crim­i­na­tion. The Depart­ment of Jus­tice would thus no longer side with trans­gen­der work­ers who sued their employ­ers for dis­crim­i­na­tion on the grounds of the 1964 law.

Now, activists fear that HHS’s pro­posed def­i­n­i­tion may fur­ther cor­rode pro­tec­tions for trans­gen­der, inter­sex and gen­der-non­con­form­ing peo­ple in the work­place. Non-dis­crim­i­na­tion law is already frac­tured and defi­cient: Accord­ing to the LGBTQ-rights non­prof­it the Move­ment Advance­ment Project, 48 per­cent of the LGBTQ pop­u­la­tion lives in states that do not pro­hib­it employ­ment dis­crim­i­na­tion based on sex­u­al ori­en­ta­tion or gen­der identity.

If the pro­pos­al advances, one of the most imme­di­ate and robust forms of recourse for work­ers will be the lever­age of orga­nized labor. Accord­ing to LGBTQ labor non­prof­it and AFL-CIO con­stituen­cy group Pride at Work, union con­tracts are the only form of legal pro­tec­tion against employ­ment dis­crim­i­na­tion for trans­gen­der peo­ple work­ing in 33 states. (In those states, it’s legal to fire a trans­gen­der work­er based on their gen­der identity.)

Union con­tracts, which are enforce­able in all 50 states, can con­tain claus­es that specif­i­cal­ly address gen­der-iden­ti­ty par­i­ty. ​“You can get any kind of non-dis­crim­i­na­tion lan­guage put into a con­tract that’s then enforce­able through the pro­vi­sions of that con­tract,” Jer­ame Davis, exec­u­tive direc­tor of Pride at Work, told In These Times. ​“Basic non-dis­crim­i­na­tion that includes pro­tec­tions for gen­der iden­ti­ty and expres­sion go a long way toward mit­i­gat­ing these issues.”

This is essen­tial for work­ers who face not only a greater risk of fir­ing, harass­ment, and unem­ploy­ment — which is approx­i­mate­ly 16 per­cent for trans­gen­der and gen­der-non-bina­ry Amer­i­cans — but also depend on trans­gen­der-inclu­sive health­care. Union con­tracts can remove exclu­sion­ary lan­guage from insur­ance poli­cies. Relat­ed­ly, they can expand what an insur­ance plan cov­ers in terms of care relat­ed to a gen­der tran­si­tion, includ­ing hor­mone treat­ment, gen­der-con­fir­ma­tion surgery and men­tal health­care. For exam­ple, the Ser­vice Employ­ees Inter­na­tion­al Union (SEIU) and hos­pi­tal­i­ty- and ser­vice-work­er union UNITE HERE have passed res­o­lu­tions for trans­gen­der-inclu­sive healthcare.

In addi­tion to these mate­r­i­al con­cerns, Davis cit­ed some of the more sub­tle forms work­place dis­crim­i­na­tion can take. These include inten­tion­al­ly mis­gen­der­ing peo­ple by inap­pro­pri­ate­ly refer­ring to them by their sex assigned at birth, Davis explained. In addi­tion, employ­ers who issue ​“male” and ​“female” uni­forms may also coerce employ­ees into wear­ing uni­forms that don’t suit their gen­der identities.

Unions, too, can shield work­ers from these indig­ni­ties, and can also cod­i­fy gen­der-reflec­tive access to restrooms. In 2015, the Occu­pa­tion­al Safe­ty and Health Admin­is­tra­tion (OSHA) issued a series of guide­lines declar­ing that ​“every employ­ee, includ­ing trans­gen­der employ­ees, should have access to restrooms that cor­re­spond to their gen­der iden­ti­ty,” but these don’t con­sti­tute law, and gen­der-neu­tral or gen­der-appro­pri­ate restroom access isn’t man­dat­ed nation­wide. ​“Aside from broad non-dis­crim­i­na­tion lan­guage,” Davis said, ​“most union con­tracts have a health and safe­ty sec­tion in which lan­guage can be added to ensure trans indi­vid­u­als have appro­pri­ate access to facilities.”

While con­tracts are an inte­gral source of work­er recourse, Pride at Work cau­tions that they’re only as good as the efforts of work­ers to defend them — and that work­ers thus must strate­gize to pro­tect their trans­gen­der and non-bina­ry cohorts. The orga­ni­za­tion urges work­ers to take such strate­gic mea­sures as plac­ing pres­sure on unions whose health plans don’t include trans­gen­der-relat­ed care, vocal­iz­ing oppo­si­tion to work­place harass­ment and striv­ing to fur­ther orga­nize union­ized and non-union­ized LGBTQ workers.

As of 2015, 15 per­cent of trans­gen­der work­ers sur­veyed by the Nation­al Cen­ter for Trans­gen­der Equal­i­ty were union­ized or had some lev­el of union rep­re­sen­ta­tion, com­pared to the nation­al aver­age of 12 per­cent. While the frac­tion is slim — a symp­tom of decades of neolib­er­al leg­is­la­tion in the Unit­ed States — it’s pos­si­ble for unions to lever­age their pow­er beyond the scope of the work­place, thus advo­cat­ing for work­ers who aren’t union­ized. The AFL-CIO, for instance, has endorsed trans­gen­der-rights leg­is­la­tion in Mass­a­chu­setts and com­bat­ted North Carolina’s infa­mous (and defunct) 2016 House Bill 2, which would have denied trans­gen­der peo­ple access to appro­pri­ate restrooms.

Davis told In These Times that the AFL-CIO has a union lob­by­ing oper­a­tion in every U.S. state, allow­ing the orga­ni­za­tion to shape pol­i­cy­mak­ing at the local, state, and nation­al levels.

The HHS’s pro­pos­al has yet to pass, and it’s unclear when and whether it will. Giv­en the grav­i­ty of the sit­u­a­tion, how­ev­er, union pro­tec­tions coun­ter­ing the fed­er­al government’s poten­tial era­sure of trans­gen­der and non-bina­ry peo­ple have tak­en on a new lev­el of urgency. ​“When the fed­er­al gov­ern­ment is say­ing these peo­ple don’t even exist, it gives employ­ers and oth­er peo­ple in the com­mu­ni­ty basi­cal­ly a license to dis­crim­i­nate,” Davis said. ​“The vast major­i­ty of trans peo­ple in this coun­try would be left hang­ing with that kind of a def­i­n­i­tion in place.”