President Donald Trump signed an executive order Monday signifying his administration’s opposition to gender diversity and transgender identity as a whole. Trump wants to restore multiple policies regarding trans Americans that were in place during his first term, including housing trans people in federal prisons based on their sex assigned at birth, while seeking to cement a broader message: according to his administration, trans people and non-binary people do not exist.
“Starting today, it will be the official policy of the Government of the United States that there be only two genders, male and female,” Trump said during his inauguration speech. In a list of priorities published Monday on the official White House website, the president’s desire “to establish man and woman as biological reality and to protect women from radical gender ideology” is cited as an example. of how Trump plans to bring back American values.
Although the federal government has no control over how people identify themselves, it can control whether they have access to federal identification documents corresponding to their gender, namely passports and state identification cards. social security. This executive order directs federal agencies to revoke policies issued during the Biden administration that made it easier for trans people to update their gender markers on federal IDs.
Inaccurate identity documents expose trans people to harassment in daily life and can hamper their travel, particularly without access to a passport that matches their actual physical appearance. It’s unclear how Trump’s executive order will affect Americans with an “X” gender marker on their passport, which becomes available in 2022, but the Trump administration appears ready to stop issuing passports with that marker.
The order also calls for transgender women to be housed with men in federal prisons and to end all gender-affirming care provided to trans people incarcerated in federal facilities. The federal government has long refused to perform transition-related surgeries on inmates, including under the Biden administration. Although Trump campaigned on ending access to transitional care for trans inmates, U.S. prisons offered gender-affirming care during his first term.
Trump also directs federal agencies to exclude transgender people when enforcing laws that protect against sex discrimination — but that statement doesn’t mean transgender people aren’t protected. Federal judges across the country have found that discrimination against transgender people is a form of sex discrimination, citing Bostock v. Clayton County, the Supreme Court case that found LGBTQ+ people are protected from discrimination in the workplace.
The Trump administration will likely run into legal issues as it works to implement these rules.
The order directly contradicts a law unanimously passed by Congress in 2009, called the Prison Rape Elimination Act (PREA), which gives incarcerated transgender people the right to decide where they will be housed if their safety is threatened. The law is supposed to apply to all settings where people are detained, including prisons, jails and detention centers, but reports show it has been consistently ignored.
Yet PREA is more powerful than Trump’s executive order, since it was passed by Congress.
In 2018, the Trump administration repealed President Barack Obama’s Transgender Prison Handbook, which sought to enforce PREA in federal prisons. President Joe Biden reinstated this guidance in 2022.
The Trump administration could also face legal challenges in its efforts to restrict federal ID documents. The first U.S. passport bearing an “X” gender marker was issued as the culmination of a six-year legal battle between an intersex and nonbinary Navy veteran and the U.S. State Department. The U.S. Court of Appeals for the 10th Circuit ordered the agency to reconsider its previous refusals to issue the veteran, Dana Zzyym, with an accurate passport – noting that forcing intersex people to choose a marker of male or female gender creates inaccurate data.
Trump’s executive order could clash with the Zzyyym ruling and other laws and precedents. One such precedent is the International Civil Aviation Organization treaty standards, which require that gender be indicated on passports and that the three permitted options be “M”, “F” or “X “.
Jennifer Pizer, legal director of Lambda Legal, which fought and won Zzyym’s case, said it was unclear whether the Trump administration could prevail by asserting a legal basis for its executive order. Pizer’s organization filed lawsuits during the Obama administration and fought for its “X” gender marker throughout Trump’s term. They finally got passports under the Biden administration.
“We had several rounds of litigation, and the government still couldn’t justify requiring someone like Dana to be inaccurate, insisting that she provide an inaccurate ID document,” Pizer said. “I don’t think there’s any reason to think that the Trump administration is now in a better position to justify this kind of rule.”
Logan Casey, director of policy research at the Movement Advancement Project, a nonprofit that tracks LGBTQ+ legislation, stressed that an executive order being signed does not equate to immediate policy development or new laws. Instead, executive orders typically direct federal agencies to begin changing their policies – and these executive orders can be easily challenged in court.
“They will issue decrees and measures and other directives, but it will still be a while before these things become law, if they ever actually come into force,” he said.
As the second Trump administration takes shape, Maha Ibrahim, attorney program director at the nonprofit civil rights group Equal Rights Advocates, wants LGBTQ+ youth to continue to pay attention, to demand action from the part of their elected officials and to remember that they deserve the rights they have. to have.
“We have a lot of students in college right now, where all of their formative years, except for one small hiatus, have been spent under an administration that was trying to erase them,” she said. “I am less concerned about the force of the law – I am more concerned about the will, energy and belief of LGBTQIA students that these rights have been fought for decades on their behalf and that we are here to continue the fight. let us fight and we have not abandoned them.
