An executive order enacted by President Donald Trump on his first day back in office proposes a new federal government interpretation of sex, which could significantly impact transgender individuals across the country.
This order stipulates that sex should be defined as solely male or female, and this definition must be reflected in official documents such as passports and in policies regarding federal prison assignments. However, it remains uncertain how this commitment to eliminate broader gender classifications will manifest in practical terms.
Many provisions outlined in the order are expected to face legal challenges.
The key points of the order revolve around the argument that there are only two sexes, male and female, dismissing the idea that individuals can transition between genders or identify outside of these categories, such as non-binary or intersex.
This stance is in line with the views of several social conservatives but contradicts the consensus among major medical organizations, including the American Medical Association, which suggest that sex and gender should be understood as existing on a spectrum instead of as rigidly defined categories.
According to the order, the intention is to safeguard women’s spaces from individuals who “self-identify” as women. It proposes a definition of sex based on reproductive cells—large cells in females or small cells in males—claiming these cells are present at conception. This assertion has drawn criticism from biologists who argue that egg cells develop weeks after conception, and sperm cells do not exist until puberty.
Evolutionary biologist Carl Bergstrom of the University of Washington expressed confusion over the definition, especially the reference to cell development “at conception,” stating that it contradicts biological understanding of sexual differentiation.
What aspects of the executive order are currently active?
Although the order has been signed, much of it requires subsequent federal actions to be truly in effect. As noted by Heron Greenesmith, the deputy director of policy at the Transgender Law Center, “Nothing is in effect” at this time.
The order designates a staff member in the White House to draft a bill for Congress aimed at codifying these definitions into law within 30 days. Additionally, federal agencies are instructed to report back to the president within 120 days regarding their compliance efforts. Some aspects may necessitate navigating the regulatory process or enacting new legislation.
According to Omar Gonzalez-Pagan, a lawyer with Lambda Legal, the order does not alter existing law but provides a clear indication of the current administration’s approach to transgender issues.
State laws surrounding various matters like sports participation, bathroom access, and gender-affirming healthcare remain unaffected directly by this order.
Implications for federally issued documents?
The order requires that passports, visas, and Global Entry cards must align with this new governmental definition of sex. The State Department, which oversees passport issuance, has declined to clarify how these changes will play out. The order implies the potential removal of the “X” gender designation on passports, which was established following extensive legal advocacy by intersex individuals.
A webpage previously explaining how to change gender markers on passports has been taken down, with legal representatives expressing doubt that any future requests to amend such markers will be granted.
A spokesperson from the White House stated that passports with unexpired dates would still be valid, though individuals must adhere to this new directive when they reapply or renew.
Concerning transgender inmates in federal prisons?
The order includes specific measures for federal prisons, where approximately 2,300 transgender inmates reside, accounting for about 1.5% of the total inmate population. It mandates that transgender women—over 1,500 in total—be housed in men’s facilities, and it calls for the cessation of gender-affirming medical care.
Some transgender inmates have obtained government-funded gender-affirming surgeries through court orders, while others have had access to treatments like hormone therapies. Sarah Warbelow, legal director at the Human Rights Campaign, stated that existing court rulings permitting treatment access will persist despite changes in federal policy.
There have been reports from the ACLU indicating that some incarcerated transgender women are being isolated or threatened with relocation to men’s facilities. The Bureau of Prisons has not responded to inquiries about whether these movements will take place.
Will Medicaid continue to cover gender-affirming treatment?
Medicaid, which provides health insurance for low-income individuals, covers gender-affirming care in select states. The previous administration had implemented a rule for national coverage, but judicial actions have placed that directive on hold.
The future of coverage in states that currently offer it remains uncertain. According to Lindsey Dawson, a director at the health policy organization KFF, revoking coverage where it already exists is likely to be a complex process that will encounter legal hurdles.
