On Day One, Trump Pits His Administration Against Transgender People
His administration will likely run into legal trouble as it implements policies on federal identity documents and housing in federal prisons.
By: Orion Rummler, Kate Sosin
This article was originally published by the 19th, a nonprofit newsroom reporting on gender, politics and policy.
President Donald Trump on Monday signed an executive order signaling his administration’s opposition to gender diversity and transgender identity as a whole. Trump wants to reestablish 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: In his administration’s view, trans and nonbinary people don’t exist.
“As of today, it will henceforth be the official policy of the United States government that there are only two genders, male and female,” Trump said during his inauguration speech. In a list of priorities published to the official White House website on Monday, the president’s wish to “establish male and female as biological reality and protect women from radical gender ideology” is given as an example of how Trump plans to bring back American values.
While the federal government has no control over how people identify, it can control whether they have access to federal identity documents that match their gender presentation — namely, passports and Social Security identification cards. This executive order directs federal agencies to revoke policies issued under the Biden administration that made it easier for trans people to update their gender markers on federal identification.
Inaccurate identity documents expose trans people to harassment in daily life and can hinder travel, especially without access to a passport that matches their actual physical appearance. It is unclear exactly how Trump’s executive order will affect Americans with an “X” gender marker on their passport, which became available in 2022, but Trump’s administration seems poised to stop issuing passports with that marker.
The order also calls for transgender women to be housed with men in federal prisons and for an end to any gender-affirming care being provided to trans people incarcerated in federal facilities. The federal government has long denied transition-related surgeries to detainees, including under the Biden administration. Although Trump campaigned on ending transition care access for trans inmates, U.S. prisons offered gender-affirming care during his first term.
Trump is also directing federal agencies to exclude transgender people when enforcing laws that protect against sex discrimination — but this declaration does not mean that trans people are left unprotected. 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 against workplace discrimination.
The Trump administration will likely run into legal trouble as it works to implement these rules.
The order directly contradicts a 2009 law passed unanimously in Congress called the Prison Rape Elimination Act (PREA), which provides transgender people who are incarcerated a say in where they are housed if their safety is threatened. The law is intended to apply to all facilities where people are detained, including prisons, jails and detention centers, but reporting shows it has historically been ignored.
Still, PREA is more powerful than Trump’s executive order, as it was passed by Congress.
In 2018, the Trump administration rescinded President Barack Obama’s Transgender Prison Manual, which aimed to enforce PREA in federal prisons. President Joe Biden reinstated the guidance in 2022.
The Trump administration could also face legal challenges in its efforts to restrict federal identity documents. The first U.S. passport with 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 prior refusals to issue the veteran, Dana Zzyym, an accurate passport — noting that forcing intersex people to pick a male or female gender marker creates inaccurate data.
Trump’s executive order could run up against the Zzyyym ruling and other laws and precedents. One such precedent is in the International Civil Aviation Organization Treaty Standards, which mandates that sex be listed on passports and that the three permissible options are “M,” “F” or “X.”
Jennifer Pizer, chief legal officer at Lambda Legal, which fought and won Zzyym’s case, said it’s unclear if the Trump administration can prevail in arguing any legal basis for its executive order. Pizer’s organization sued under the Obama administration and fought for their “X” gender marker through Trump’s tenure. They were finally granted a passport under the Biden administration.
“We had multiple rounds of this litigation, and the government kept failing to be able to justify requiring somebody like Dana to be inaccurate, insisting on giving an inaccurate identity document,” said Pizer “I don’t think there’s any reason to think that the Trump administration is better suited now to justify that kind of a rule.”
Logan Casey, director of policy research at the Movement Advancement Project, a nonprofit that tracks LGBTQ legislation, pointed out an executive order being signed doesn’t equate to immediate policymaking or new laws. Instead, executive orders typically direct federal agencies to begin changing their policies — and these orders can be easily challenged in court.
“They will issue executive orders and actions and other directives, but it will still take time before those things actually become law, if they ever actually go into effect,” he said.
As the second Trump administration takes shape, Maha Ibrahim, a program managing attorney at the nonprofit civil rights group Equal Rights Advocates, wants young LGBTQ people to continue to pay attention, demand action from their elected officials and remember that they deserve the rights that they have.
“We’ve got a lot of students in university right now, where all of their formative years, with the exception of one small gap, were spent under an administration that was trying to erase them,” she said. “I’m less concerned about the force of law — I’m more concerned about the will and the energy and belief in LGBTQIA students that these rights have been fought for decades in their name, and that we’re here to continue the fight and we haven’t abandoned them.”
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The smallest demographic. Strange choice isn’t it? The small man with the big signature.