President Trump on Monday signed an executive order declaring that it’s policy of the federal government to only recognize “two sexes, male and female,” reversing the ability of Americans to mark “other” or “X” on federal forms and causing sweeping implications in the way the federal government acknowledges gender.
Mr. Trump has long pledged to alter the way the federal government handles the issue of gender identification, and on the campaign trail, his lines about preventing transgender athletes from participating in women’s sports prompted some of the loudest reactions from his rally-goers.
LGBTQ rights groups are pledging to challenge Trump’s order where they can.
“Across the country, ideologues who deny the biological reality of sex have increasingly used legal and other socially coercive means to permit men to self-identify as women and gain access to intimate single-sex spaces and activities designed for women, from women’s domestic abuse shelters to women’s workplace showers,” Mr. Trump’s executive order reads. “This is wrong.”
The order is at odds with the statements of transgender Americans, who say they are trying to use spaces that align with their gender identity, not “gain access to intimate single-sex spaces and activities designed for women.”
The president’s executive order means the secretaries of the State Department, Department of Homeland Security and the Office of Personnel Management will require that government-issued identification documents, including visas, passports, and Global Entry cards, “accurately reflect the holder’s sex.” Americans have been able to select “X” on their passports since April 2022 under former President Joe Biden.
The gender executive order also says the federal government is not to use terms like gender identity, instead using the sex assigned at birth.
“Federal funds shall not be used to promote gender ideology,” the order reads. “Each agency shall assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.”
According to the LGBTQ media advocacy group GLAAD, “gender ideology is not a term transgender people use to describe themselves, it is an inaccurate term deployed by opponents to undermine and dehumanize transgender and nonbinary people.”
The order also says the attorney general “shall ensure that the Bureau of Prisons revises its policies concerning medical care to be consistent with this order, and shall ensure that no federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”
Legally speaking, Thomas Berry, director at the Cato Institute’s Center for Constitutional Studies, said the executive order is wide-ranging, but aspects of it may run up against a 2020 Supreme Court decision. In Bostock v. Clayton County, Georgia, the Supreme Court ruled 6-3 vote that it is illegal for an employer to fire someone because they are gay or transgender.
“It’s such wide-ranging executive order,” Berry said of Mr. Trump’s action. “I think some he has the authority to do and some parts of it are going to be more controversial. So one thing that strikes me immediately that I’m curious about is to what extent is he going to try to push back against the Supreme Court’s Bostock decision from within the last five years, where the Supreme Court explicitly held that the 1964 Civil Rights Act applies to both sexual orientation as well as gender identity, and discrimination on the basis of gender identity. So that’s — that’s a statute, the interpretation of which is up to the Supreme Court, and the Supreme Court has made a binding decision.”
Berry said the federal government will likely have more latitude in how it applies the order internally within the federal government, such as how federal employees may identify.
Supporters of LGBTQ rights have vowed to fight the Trump administration’s changes however they can.
Chase Strangio, co-director of the American Civil Liberties Union’s LGBT and HIV Project, said the ACLU is closely studying the impact and implementation of the order. Strangio said Tuesday that it’s not yet clear whether changes will be retroactive with, for instance, State-Department-issued passports.
“I would anticipate a lot of future legal actions, but all of that will depend on what we actually see from the various agencies charged with implementing the various pieces of this executive order,” Strangio said.
Omar Gonzalez-Pagan, senior legal counsel with Lambda Legal that focuses on LGBT civil rights issues, also mentioned the Supreme Court’s decision in Bostock as potentially counter to this order.
“We stand ready to challenge any of these implementation actions,” he said.
At the same time, some conservatives are pleased by the order.
“Trump has thrown down the gauntlet and made clear that his administration will protect women and girls and fight the gender ideologues who have enjoyed free reign for the past four years,” wrote Jay Richards, who directs the Heritage Foundation’s Center for Life, Religion, and Family. “Of course, what can be done by executive order can be undone in the same way,” Richards said, adding he hopes Congress will codify the definitions of male and female.
The “two sexes” executive order is one of more than 200 of executive actions Mr. Trump took in his first day in office, ranging from attempting to end birthright citizenship to pardoning Jan. 6 rioters.
