On President Donald Trump’s first day back in office, he enacted an executive order that presents a new federal definition of sex, significantly impacting transgender individuals across the country.
This mandate directs federal entities to classify sex exclusively as male or female, which will be reflected on official documents like passports and various policies, including the categorization of federal prison assignments. However, the implications of this directive on federal spending and its practical application remain uncertain, presenting a landscape fraught with potential legal challenges.
The order firmly asserts the existence of only two sexes, dismissing the acknowledgement of gender transitions or alternative gender identities such as nonbinary or intersex. This approach aligns with the viewpoints commonly held by numerous social conservatives, yet it starkly contradicts the perspectives endorsed by the American Medical Association and other reputable medical organizations, which contend that both gender and sex are better understood as existing on a spectrum rather than confined to binary definitions.
In an effort to safeguard women’s spaces from those who identify as women, Trump’s proclamation suggests an unconventional definition of sex founded on reproductive cells, describing large cells for females and small ones for males, claiming such cells are present at conception. However, biologists critique this reasoning, indicating that egg cells form weeks after conception, and sperm cells only manifest at puberty. Carl Bergstrom, an evolutionary biologist from the University of Washington, notes the lack of clarity in interpreting this order’s definition given the assertion of a definitive sex established at conception.
While signed into effect, many elements of the order necessitate additional federal action to be operational. Heron Greenesmith, deputy director of policy at the Transgender Law Center, highlighted that as it stands, “Nothing is in effect.” The order instructs a White House staff member to prepare a congressional bill within 30 days to formalize these definitions in law. Moreover, federal agencies are mandated to report back to the president within 120 days regarding their compliance efforts, suggesting that certain components may involve regulatory alterations or the passage of new legislation. Omar Gonzalez-Pagan from Lambda Legal remarked that the order does not amend existing laws but signals the administration’s political stance on transgender matters.
Regarding federally issued documents, the executive order demands that passports, visas, and Global Entry cards reflect the new definition of sex. The State Department has refrained from addressing inquiries about how these changes are to be implemented. The directive implies the removal of the “X” designation, which was made available on passports in 2021 following a long-fought legal campaign by an intersex activist. Additionally, an informational page detailing how individuals could alter their gender marker on passports has been taken down, leaving lawyers such as Chase Strangio from the ACLU doubtful about the approval of any new applications for gender marker changes.
The order also addresses the treatment of transgender individuals in federal prisons, which currently house nearly 2,300 transgender inmates, accounting for approximately 1.5% of the overall prison population. According to the order, transgender women—over 1,500 in total—are to be assigned to male prisons, and the provision for gender-affirming medical care is to be ceased. Notably, at least two transgender inmates have undergone government-funded gender-affirming surgeries in the past several years following judicial instructions. Sarah Warbelow, legal director at the Human Rights Campaign, affirms that existing court orders granting inmates medical treatments remain effective, despite any changes in federal policy. Reports from the ACLU indicate that some transgender women in custody are being transferred to isolation or are facing moves to men’s facilities, although the Bureau of Prisons has not commented on this matter.
Finally, concerning Medicaid’s coverage for gender-affirming care, its fate remains unclear. While Medicaid provides support for gender-affirming treatments in certain states, former President Biden’s administration established a rule to broaden this nationwide; however, legal challenges currently hold that directive in limbo. Lindsey Dawson, director of LGBTQ health policy at KFF, explains that revoking coverage in states that have previously extended it would likely entail a protracted process, which may also encounter legal hurdles.
