Well, that didn't take long. Only hours after Donald Trump was sworn in as the nation's 47th president, he signed a slew of executive orders. He pardoned 1,500 people convicted in the January 6 insurrection, including those who attacked law enforcement officers; began to dismantle federal diversity, equity, and inclusion programs; and sought to end birthright citizenship for children of some non-U.S. citizens that's enshrined in the 14th Amendment to the U.S. Constitution, among many, many others. The executive order that we're concerned about, however, seeks to repudiate transgender people, and, if it withstands legal scrutiny, will cancel nonbinary people, including as it pertains to federally-issued identification documents. Draconian does not begin to describe this order. Trump even seeks to undo a landmark 2020 U.S. Supreme Court decision in which the court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of sexuality or gender identity.
First, "sex" is defined as an immutable biological classification as either male or female. "'Female' means a person belonging, at conception, to the sex that produces the large reproductive cell," the order states. "'Male' means a person belonging, at conception, to the sex that produces the small reproductive cell."
As trans journalist Erin Reed noted in her review, "Under Trump's executive order, this section defines terms like 'male' and 'female' in ways that could fundamentally reshape how laws, policies, and regulations are applied throughout federal agencies. The practical implications are enormous. These definitions form the foundation for the rest of the executive order, serving as a directive for every federal agency to reinterpret and enforce their policies through this narrow and reductive lens. For instance, the Department of Education could use this definition to exclude transgender women from Title IX protections."
In fact, gender identity isn't even a thing under the executive order, which is titled "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government." "It is the policy of the United States to recognize two sexes, male and female," the order reads. "These sexes are not changeable and are grounded in fundamental and incontrovertible reality." Under definitions, the order states, "'Gender identity' reflects a fully internal and subjective sense of self, disconnected from biological reality and sex and existing on an infinite continuum that does not provide a meaningful basis for identification and cannot be recognized as a replacement for sex." The order goes on to state that within 30 days, the Health and Human Services will provide to the federal government, external partners, and the public clear guidance expanding the sex-based definitions found in the order.
What likely will adversely affect trans and nonbinary people are identification documents. And here, Trump's order states that the secretaries of state and homeland security and the director of the Office of Personnel Management "shall implement changes to require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder's sex (as defined above)." On Tuesday, some clarity was provided when the White House said the order would only apply to new documents, not existing ones. But, when people renew their passports or other documents, they will need to indicate the sex they were assigned at birth, according to a report by NOTUS. The executive order is horrendous, and we encourage Lambda Legal Defense and Education Fund to fight it in court. Lambda Legal said it is considering a lawsuit. And it was a Lambda client that received the first "X" passport a few years ago, after the Biden administration allowed people to self-identify their gender on passports with options of male, female, or "X."
Regardless, it seems clear from the executive order that the "X" designation won't be around much longer.
Federal funds would no longer be used to "promote gender ideology," as the order states. "Each agency shall access grant conditions and grantee preferences and ensure grant funds do not promote gender ideology." This could be interpreted to cease grants to organizations and agencies that serve trans and nonbinary people.
The other major part of the order concerns what Trump calls privacy in intimate spaces. Under this order, trans women could not be detained in women's prisons or housed in women's detention centers. The secretary of the Housing and Urban Development Department is tasked with preparing and submitting for notice and comment rulemaking policy to rescind the final rule entitled "Equal Access in Accordance with an Individual's Gender Identity in Community Planning and Development Programs," (2016) and shall submit for public comment a policy protecting women seeking single-sex rape shelters.
No federal funds shall be expended "for any medical procedure, treatment, or drug for the purpose of conforming an inmate's appearance to that of the opposite sex." In other words, no hormones, surgery, or other treatment.
Intimate spaces designed for women, girls, or females (or for men, boys, or males) are designated by sex and not identity, the order states.
In another blow to trans people in the military, Trump rescinded a Biden-era executive order that allowed them to serve. Politico reported that while Trump has not reinstated the ban he implemented during his first term, revoking Biden's order clears the way for that to be done. The Defense Department estimated there were about 8,000 transgender troop members in 2019, just before Trump's first ban took effect, the outlet reported.
No Pride for administration
New Secretary of State Marco Rubio, confirmed by the U.S. Senate in a 99-0 vote Monday, also wasted no time in shoring up the administration's hostility to LGBTQ people. According to reports, Rubio, a Republican former senator from Florida, has instituted a "one flag" policy whereby only the American flag will fly at U.S. embassies and outposts at home and abroad. No longer will Pride, trans, or Black Lives Matter flags be flown, according to the order. (In addition to the U.S. flag, the prisoner of war/missing in action and the wrongful detainee flags will be allowed.)
"Starting immediately, only the United States of America flag is authorized to be flown or displayed at U.S. facilities, both domestic and abroad, and featured in U.S. government content. The flag of the United States of America united all Americans under the universal principles of justice, liberty, and democracy. These values, which are the bedrock of our great country, are shared by all American citizens, past and present," the Rubio order states.
The Trump executive orders and the order from the State Department clearly show that the new administration is marching to the beat of discrimination and a heteronormative focus that is at odds with reality. LGBTQs have been present in society across the world for thousands of years, even when the terms weren't universally understood or applied. It's shameful that Trump, his cabinet secretaries, and staff are using the LGBTQ community to score cheap political points with a base that overwhelmingly would rather see lower prices and fair wages than obsess about who uses a public restroom or serves in the military. But, as we've written before, about half of the country is under the decidedly false impression that Trump will "make America great again." The U.S., even with all of its problems, has always been a great country, and its laws and policies becoming more inclusive was just one example of that.
Never miss a story! Keep up to date on the latest news, arts, politics, entertainment, and nightlife.
Sign up for the Bay Area Reporter's free weekday email newsletter. You'll receive our newsletters and special offers from our community partners.
Support California's largest LGBTQ newsroom. Your one-time, monthly, or annual contribution advocates for LGBTQ communities. Amplify a trusted voice providing news, information, and cultural coverage to all members of our community, regardless of their ability to pay -- Donate today!