“In an effort to “defend women’s rights” against “efforts to eradicate the biological reality of sex,” the order—titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”—seeks with the force of federal law to establish men and women as distinct and immutable categories.
“It is the policy of the United States to recognize two sexes, male and female,” which “are not changeable and are grounded in fundamental and incontrovertible reality,” the order states. It defines “sex” as “an individual’s immutable biological classification as either male or female” and notes that the term is “not a synonym for and does not include the concept of ‘gender identity,'” which the order says “does not provide a meaningful basis for identification and cannot be recognized as a replacement for sex.”
Perhaps ironically, supporters of transgender equality might agree with parts of this characterization. “Sex is a label—male or female—that you’re assigned by a doctor at birth based on the genitals you’re born with and the chromosomes you have. It goes on your birth certificate,” according to Planned Parenthood. Gender identity, on the other hand, “is how you feel inside and how you express your gender through clothing, behavior, and personal appearance. It’s a feeling that begins very early in life.”
The executive order defines “female” as “a person belonging, at conception, to the sex that produces the large reproductive cell” and “male” as the opposite—”a person belonging, at conception, to the sex that produces the small reproductive cell.” In other words, anyone with an XX chromosome is a female, and anyone with an XY chromosome is male, with no exceptions. The order tautologically defines “sex” in terms of “male” and “female,” which are then defined in terms of “sex.”
But by ruling so starkly, the order completely writes intersex people out of existence.
“People who are intersex have genitals, chromosomes or reproductive organs that don’t fit into a male/female sex binary,” according to the Cleveland Clinic. “Some people who are intersex consider their gender to be intersex. Others identify as female, male, nonbinary or a different gender.” In this case, a person’s professed gender may change from the one assigned at birth because they literally have biological markers of both. The clinic further notes that one in 100 Americans is estimated to be intersex.
The executive order criticizes “gender ideology,” which it says “replaces the biological category of sex with an ever-shifting concept of self-assessed gender identity” and “diminishes sex as an identifiable or useful category but nevertheless maintains that it is possible for a person to be born in the wrong sexed body.” But intersex people literally are born in the wrong sexed body, at least as defined by the executive order, which says everyone is either all male or all female.”
“Just hours into his presidency, Trump signed an executive order that seeks to roll back trans rights in nearly every facet of life. The order describes trans women as men and directs federal agencies to keep them out of “intimate spaces” designed for women. It targets trans people’s identity documents and health care, and it narrowly defines sex in a way that aims to erase the very concept of trans and nonbinary people.
In the week since, the administration has halted transgender people’s passport applications, transferred incarcerated trans women to solitary confinement and moved to bar transgender troops from serving in the military – an effort that was met with an immediate legal challenge. On Wednesday, the Office of Personnel Management ordered federal programs promoting “gender ideology” to be shut down and their employees put on leave. A day earlier, Trump directed federal agencies to begin crafting policies that could cut off young people’s access to transition care nationwide. And he has done so in orders that describe trans people as dishonorable and “mutilated,” lacking “humility and selflessness.””
“The new orders prevent transgender people from openly serving in the military, greenlight the process of developing a missile defense shield to protect the U.S., and reinstate service members that voluntarily left or were forced out of the military over COVID-19 vaccine mandates.
Trump also penned an expected executive order that would “abolish” every diversity, equity and inclusion (DEI) office within the DOD and Department of Homeland Security, the latter of which houses the U.S. Coast Guard.”
“Trump also signed a broad order Monday eliminating federal recognition of transgender and nonbinary individuals. In practice, said Mailman, the order will mean barring any options other than male and female from government documents, including passports and visas, ending the annual recognition of Transgender Day of Visibility, and excluding trans people from gender-segregated spaces that take federal funding, including prisons, migrant housing and domestic violence shelters.”
“Trump could strip away civil rights and nondiscrimination protections enumerated under the Biden administration, which specifically apply to trans students.
The executive branch has a lot of control over what counts as discrimination in education, thanks to Title IX, a civil rights law originally meant to advance women’s equality. The Biden administration took the position that the law’s protections against discrimination “on the basis of sex” mean that discrimination against trans students on the basis of their trans identity qualifies as sex discrimination.
That interpretation of the law faced legal challenges and has been rejected by about half of the states. The Trump administration can — and likely will — simply take the stance that Title IX offers no protections to trans students.”
“In 2023, over strong objections of activists on the right and left, the Biden administration announced a proposed change to Title IX, the law that prohibits discrimination based on sex in any federally funded educational program. Their suggested change would prohibit outright bans on transgender athletes, but would permit schools to restrict transgender students from participating if they could demonstrate that inclusion would harm “educational objectives” like fair competition and the prevention of injury.
This more nuanced stance marked the first time the Biden administration took the position that sex differences can matter in school sports, something hotly disputed by leading LGBTQ rights organizations. The proposed rule also reflected research that suggests sex differences emerge over time, so the standard for inclusion in high school should not necessarily be the same as that in younger grades.
Contrary to the post-election grumblings from Biden allies in the Atlantic, the president has been virtually silent on his own administration’s proposal for the last 18 months. He’s never spoken about it, and it was never mentioned by any other Biden official, including in any White House briefing on transgender issues.
The White House declined to comment for this story. A spokesperson for the Department of Education said their rulemaking process is still ongoing, as they consider the 150,000 public comments they received. “We do not have information to share today on a timeline,” they added.”
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“Tellingly, Biden’s proposed policy on transgender athletes — allowing targeted restrictions for fairness and safety while rejecting blanket bans — would likely resonate more with average Americans than the hardline stances typically associated with Republicans, who leaned on transgender fearmongering in the midterms only to see their candidates flop, or Democrats, who many voters perceive as having no nuance on the topic at all. Yet the Biden administration’s reluctance to clearly communicate their middle-ground position left a vacuum that Republicans were happy to fill. It’s a dynamic that political observers say has become increasingly common: Democratic leaders stake out a position but, wary of internal rifts, default to strategic ambiguity even on issues where their stances might resonate with voters.”
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“the Biden administration initially staked out a position that said there’s no legitimate basis to discriminate based on sex differences. In 2021, Biden’s Justice Department intervened in a lawsuit filed by parents of an 11-year-old transgender girl against the state of West Virginia, affirming this view.
“[West Virginia] cannot point to any valid evidence that allowing transgender girls to participate on girls’ sports teams endangers girls’ athletic opportunities,” the department said in its filing. “Instead, the State legislated based on misconceptions and overbroad assumptions about transgender girls.”
While praised by major LGBTQ groups like the Human Rights Campaign, this position obscured quieter disagreement among transgender leaders. Some questioned whether sports participation should be a top priority for the movement, while others doubted whether litigation was the best approach for advancing inclusion, given the state of public opinion. The Justice Department’s position also masked divides within the Democratic Party. Though it’s a complex topic and more research is needed, some existing scientific evidence suggests that transgender girls and women who do not suppress testosterone can have advantages in sports, particularly if they have gone through male puberty.
The West Virginia lawsuit wasn’t the only federal suit in the works. Happening at the same time was another case involving two transgender girls that was quickly drawing national attention. In response to Terry Miller and Andraya Yearwood winning multiple state track titles in Connecticut, competitors’ parents and the Christian right-wing legal organization Alliance Defending Freedom filed a lawsuit against Connecticut’s policy of including transgender athletes. Though initially dismissed in 2021, a federal judge just this month said the Title IX case could proceed.
As more of these politically charged lawsuits and bills mounted, the Biden administration announced it would be delaying its proposed changes to Title IX, despite its Day 1 executive order. Sources involved said the delay was largely understood as a political move driven by the upcoming midterm elections. When the Education Department finally released its proposed school sports rule in 2023, its language represented more of a compromise.
The rule marked the Biden administration’s first time saying that sex differences can matter in school sports and schools can discriminate in some cases, while also saying schools do not have to — thus permitting blue states like Connecticut to continue with existing policy. While its merits were debated, the federal proposal was on the table.
“The draft regulation recognizes that there are real sex differences and that these matter in competition,” Doriane Coleman, a law professor at Duke University who focuses on sports and gender, told Vox. “For the progressive wing of the Democratic Party, which takes the position that all sex differences are just myth and stereotype, that was a big, maybe even treasonous move.””
“In January, Delaware Rep.-elect Sarah McBride will also make history in congressional representation, becoming the first openly transgender individual to serve in Congress. But once again, being a trailblazer has come with challenges.
In response to McBride’s election, South Carolina Rep. Nancy Mace introduced a resolution last week intended to ban transgender women like McBride from using women’s bathrooms in the Capitol. House Speaker Mike Johnson initially equivocated on the issue, but under pressure from fellow Republicans like Georgia Rep. Marjorie Taylor Greene, he issued a statement that all single-sex facilities in the Capitol and House offices “are reserved for individuals of that biological sex.” Mace has since followed up with an even more sweeping proposal, a bill that would apply a transgender bathroom ban to all facilities on federal property.”
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“56 percent of Americans said they agreed more that “transgender rights have gone too far, infringing on the rights of women and children,” compared to 32 percent who said they agreed more that “protecting transgender rights is essential to ensuring equality for all Americans.” And in another YouGov poll last week, a plurality of 43 percent of Americans said they’d prefer their congressional representatives to focus more on upholding traditional definitions of gender, versus 30 percent who wanted them to focus more on protecting the rights of transgender people (12 percent said neither, and 15 percent were unsure).
When it comes to specific policies, about half of Americans in that poll (including 78 percent of Republicans and 29 percent of Democrats) seemed to agree with Mace on bathroom bans, telling YouGov they think transgender people should use bathrooms that correspond to their assigned sex at birth, while 34 percent thought they should use bathrooms that align with their current gender identity, or either option.
Slightly more voters also seem to favor bans on sports participation, while opinions are split on banning gender-affirming care for youth. In an October UMass Amherst poll, a plurality of Americans, 47 percent, supported bans on transgender individuals’ participation in school sports teams matching their gender identity, compared to just 25 percent who opposed them (the rest were undecided). In a Morning Consult poll of registered voters from Nov. 6-7, 56 percent said they would support and 30 percent said they would oppose banning transgender girls and women from competing in high school and college sports. Meanwhile, 39 percent in the UMass Amherst poll said they would oppose policies to ban gender-affirming care for trans youth, while fewer, 35 percent, said they would support them. And in the Morning Consult poll, more were still in favor of the bans: 46 percent, compared to 39 percent opposed.”
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“in an October CNN poll, registered voters were asked if they supported federal policies that were more supportive or more restrictive of transgender rights: Their answers were about evenly split between those options, but a plurality, 42 percent, said they “don’t have strong feelings either way.” That indicates that these issues may not be as pressing or important to many Americans as they are to politicians hoping to fan the culture war flames.”
“Ohio has banned gender-affirming care for minors and restricted transgender women’s and girls’ participation on sports teams, a move that has families of transgender children scrambling over how best to care for them.”
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“The new law bans gender-affirming surgeries and hormone therapies, and restricts mental health care for transgender individuals under 18.”
“The North Carolina legislature has overridden the veto of Democratic Gov. Roy Cooper and passed multiple laws specifically targeting trans youth on issues including gender-affirming care, sports, and education. It’s the latest of several states with GOP-led legislatures to approve such bills, and it highlights how Republicans are continuing to make these policies central to their platform ahead of 2024.”