Full-Throated Explicit Dehumanization

A stated ambition of the second Trump administration has been to end all “Marxist equity, transgenderism, and green new deal social engineering policies.” The first and third items on that list are self-evidently made-up targets, perhaps fantasies of a utopian future visible only in Trump’s own crosshairs: America is unfortunately neither Marxist nor equitable; the Green New Deal, of course, never passed. Even so, his administration’s campaign against “equity” and “social engineering policies” has successfully brought a significant portion of the federal government — from Head Start to Meals on Wheels, medical research funding to foreign aid — to at least a temporary halt over the past weeks.

But what about “transgenderism,” the only nonfictional item on President Donald Trump’s list? Perhaps because, unlike the Green New Deal, they actually exist, transgender people have been especially easy to single out and harm. Signed on the day of his inauguration, Trump’s executive order “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” requires all parts of the federal government to share the same definition of sex: “an individual’s immutable biological classification as either male or female.” Female “means a person belonging, at conception, to the sex that produces the large reproductive cell”; males produce “the small reproductive cell.” That order and ones that followed on sports, DEI, education and the military collectively constitute an attempt to exclude transgender people from the categories that make our existence legible.

The new definitions will be used to govern placement in sex-segregated facilities, end DEI in schools and workplaces, cut off medical care for transgender prisoners and youth, put birth sex on federal identity documents and records, bar transgender women from competing in women’s sports, block federally funded science research that refers to “transgender” or “gender,” excise “radical gender ideology” from curricula, end anti-bullying initiatives in schools, and ban transgender people from the military. These moves have not come as a surprise to transgender communities: the executive orders were consistent with campaign promises Trump made two years earlier and aligned with Project 2025’s more general statements on “transgender ideology.” (Metadata information showed that some authors of memos accompanying the directives were not government employees but were associated with Project 2025.)

What was unexpected was the speed with which agencies put these orders into effect. On Jan. 23, the Department of State instructed employees to suspend applications for changes of gender markers on passports and to stop issuing passports with gender marker of “X.” One woman who had applied for a passport renewal before the inauguration was issued a passport, dated Jan. 24, that changed her gender back to “M.” The agency explained that change was made “to match our records.” Her supporting identity documents had all listed her gender as “F,” but she assumed her application was cross-checked against a passport she had as a child.

The “Defending Women” order directs all agencies to use these definitions to enforce placement in sex-segregated places. In this regard, too, the interval between announcement and enforcement was startling. On Jan. 21, a day after the inauguration, a transgender woman in a federal women’s prison was put in a special housing unit and told that she would be moved to a men’s prison. On Jan. 28, the Department of Education announced an investigation of a Denver high school that had converted a girl’s bathroom to an all-gender bathroom.

On Jan. 29, the Office of Management and Budget issued guidance outlining specific steps agency heads must take to comply with the “Defending Women” executive order, giving them two days to terminate all programs, web pages, trainings, regulations and communications that promote or inculcate gender ideology. Anyone working in such programs would immediately be put on paid leave. Access to bathrooms in federal agencies would now depend on whether an individual belonged, at conception, to the sex that produced the larger reproductive cell or the one that produced the smaller one. And on all policies, forms and documents, “gender” had to be replaced with “sex.” On Feb. 4, the Department of Education announced that federal student financial aid (FAFSA) forms would eliminate the nonbinary option and reflect the “biological reality that there are only two sexes.”

On Feb. 5, Trump issued yet another executive order on gender, this time banning transgender women from women’s sports. The next day, the Education Department announced investigations into San Jose State University, the University of Pennsylvania and the Massachusetts Interscholastic Athletic Association for violating the policy.

The alacrity with which Trump’s directives have been acted upon, in advance of normal processes for rules and other forms of administrative policymaking, has been matched by their comprehensiveness. Jennifer Levi, an attorney at GLBTQ Legal Advocates and Defenders who has argued three cases challenging the executive orders in federal courts in recent weeks, says the full impact of the many policy changes can only be grasped when seen in the aggregate. “These policies work together to push transgender people out of workplaces, schools, health care and daily life — deliberately making it impossible to function in society. These orders all fit together as parts of a single coordinated strategy,” Levi said.

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The Trump administration’s definitions of male and female are plainly incoherent — at conception, it is impossible to tell which kinds of reproductive cells will develop. (The phrase “at conception” was probably inserted as a nod to the anti-abortion position.) However, even if sex assigned at birth is used as a proxy for these definitions, applying the same definition in vastly different situations defies common sense.

Although bathroom safety has been a rallying cry for the right, trans advocates are quick to point out that Trump’s policies, if they pass muster in the courts, require men whose first birth certificate had an F on it to use women’s bathrooms and are thus unlikely to make women feel safer in those spaces. But the problems caused by the birth sex metric matter for everyone. For example, epidemiologists researching the prevalence of uterine cancer include only people with uteruses in their number crunching. Mandating that people assigned female at birth be the denominator would include people who have had hysterectomies and result in findings that underestimate the prevalence of cancers of the uterus. For Black women, who have higher hysterectomy rates, using sex at birth underestimates the rates of cervical cancer by as much as 44 percent. A study designed to measure the prevalence of cancer in people with uteruses might sound woke, but it would produce more accurate results.

Regardless of logic and commonsense, the force of law trumps truth, as Hobbes reminds us. When states decide how to assign gender markers to individuals, those decisions matter by virtue of the state’s authority. But, ultimately, it isn’t Trump who gets to say what the law is.

The lawsuits have already begun: a first suit, challenging the order regarding prisoners, was filed in a Massachusetts federal court on Jan. 26. Soon after, a judge issued an order temporarily blocking her transfer. Another lawsuit from a prisoner was filed in Washington, D.C., a few days later. The judge in that case issued a nationwide temporary restraining order. A lawsuit contending that the ban on military service violates well-established principles of equal protection was filed the day after Trump’s military executive order was issued. Two lawsuits to the order denying federal funds to medical providers who provide gender-affirming care to youth have been filed. The ACLU filed its challenge to the new passport policy on Feb. 7. And in addition to the federal courts, state non-discrimination laws are an obstacle to Trump’s power to force state governments and civil society to take up arms in his campaign against “gender ideology.”

Still, some non-governmental organizations, medical providers and private companies have started to comply. Already some providers of medical care to trans youth, even in blue states, have halted care. Letitia James, the attorney general of New York, reminded these providers that withholding services from transgender people could violate non-discrimination law. The attorney general of California responded that people seeking gender-affirming care and their providers are protected under state law. But the deluge of threats from the White House, however legally dubious, is difficult for institutions to resist. Whoever came up with the adage “Don’t obey in advance” has never been in a room with risk management attorneys.

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The speed and thoroughness of Trump’s anti-transgender initiatives, bearing on virtually every aspect of transgender people’s lives, has been both relentless and heartbreaking. The shift in the language and argument, from technocratic to openly transphobic, has been no less shocking. In the order on transgender servicemembers, for instance, anti-trans arguments no longer merely truck in the usual points about the difficulties of integrating transgender troops. The rhetoric is now full-throated explicit dehumanization of anyone who lives in a gender not associated with their birth sex: “adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful and disciplined lifestyle, even in one’s personal life.”

“Being so open about the animosity to transgender people is risky,” said Shannon Minter, legal director of the National Center for Lesbian Rights who has been litigating transgender rights cases for decades and whose organization, along with GLBTQ Legal Advocates and Defenders, filed the two Bureau of Prisons cases and the challenge to the military in the last month. “Saying the quiet part out loud gives courts more reason to strike down these rules, because it’s clear they’re motivated by anti-trans animus.”

But it also means the very nature of the debate has shifted. “Before, we challenged anti-trans policies based on whether they furthered something the government argued was a legitimate or important state interest,” Minter said. For example, the Department of Defense might have argued that banning transgender people from serving in the military promotes military readiness and unit cohesion. Because banning transgender people was not rationally related to those goals, “we could show that these policies don’t further the stated interest,” Minter said. But “attacking transgender people directly means we now have to have debate whether or not it is OK to prevent people from being transgender.”

If this shift in terms is newly enshrined in law, it has been in the works for some time, with uneven success. The past decade of federal policy on transgender issues has been defined by a pattern of regulatory whiplash, with the first Trump administration reversing Obama-era policies protecting transgender people from discrimination in education and health care, then the Biden administration reinstating these protections, only for the Trump administration to reverse them once again. The closest first-Trump-term preview of the current anti-trans strategies occurred in 2018, when the New York Times reported on a memo circulated by the Department of Health and Human Services that would define sex uniformly across government agencies, but that plan got off to a slow start and never gained momentum. Ultimately, the first Trump administration made little headway instituting a government-wide policy, backed by the courts, for deciding who is male and who is female.

The deluge of executive orders on sex suggest that the Trump administration is determined to do things differently this time. The new directives are sweeping, comprehensive and terrifyingly creative in their multi-front assaults. This is clear in the situation facing transgender federal employees. If Trump has his way, it will be extremely difficult for transgender individuals to work in federal jobs. Trans people can’t be fired for living in a gender different than their birth sex because of the 2020 Supreme Court’s decision in Bostock v. Clayton County, which found that the ban on sex discrimination in employment (Title VII of the Federal Civil Rights Act of 1964) protects transgender people and gay, lesbian and bisexual people. But cumulatively, the policy changes would mean, if backed by the courts, that trans people who work for the federal government will be classified according to their birth sex on all records and forms, must be referred to with pronouns associated with their birth sex, and must use the bathrooms associated with their birth sex — in effect, that transgender people can no longer work for the federal government.

A similar strategy has emerged in the armed services. On Feb. 1, five days after the military executive order was issued, Miriam Perelson, a transgender woman, was given an ultimatum: she must be “classified and treated as a man — i.e., not be transgender — or be separated” from the miliary. That meant Perelson would be forced to “live in male bays, utilize male latrines and be partnered with a male battle buddy.” As Perelson’s attorneys, Levi and Minter, argued in the case, “requiring Miriam, a transgender woman, to serve as a man is the same as saying she cannot serve at all, since it requires her to stop being transgender, which she cannot do because she is transgender.”

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The Trump administration’s insistence on birth sex as a universal metric has far-reaching consequences, of course, for all trans people, not just those in the employ of the federal government. The Wall Street Journal described the executive order on sex definition as creating “headaches” for trans people who “end up with conflicting government identification documents.” It will be difficult to prove identity at airports, apply for jobs, enter spaces that require ID. Trans people will be outed, and more vulnerable to discrimination, harassment and violence. This is more than a headache — it’s state-sanctioned endangerment.

Nor is it a new problem. As I explain in “Sex Is as Sex Does,” whether an individual can change their legal sex to “F” or “M” (or in recent years to “X”) depends on what state they live in, what jurisdiction they were born in, and what government agency they’re dealing with. For state actors that do allow gender changes, the requirements can vary dramatically — from surgery to an avowal of one’s gender identity.

Since 2010, when the State Department dropped its requirement that applicants for a gender change show proof of surgery, the federal passport has been the most reliable primary form of identification for transgender U.S. citizens. For those born or living in states governed by Republicans, the most crucial problem might not be conflict between documents, but a lack of conflict between state and federal documents and records — birth certificates, driver’s licenses, Social Security records and passports could all designate gender as sex at birth. As recently as 2021, all states except Tennessee allowed people to change the gender on their birth certificates, though some requirements were onerous. In recent years, however, Republican administrations in five additional states have reversed course through regulations or legislation that defines sex in ways similar to Trump’s executive order.

Florida took an especially punitive stance by not only banning changes to gender markers on birth certificates and driver’s licenses, but also declaring through an official memo that providing supporting documents that indicate a gender different from one’s birth sex on a driver’s license application constitutes fraud. Someone born in New Jersey, for example, who had changed their birth certificate, moved to Florida, and used that birth certificate to apply for a driver’s license there would be subject to civil and criminal penalties.

The Trump administration’s sweeping attacks on transgender rights demonstrate the stark reality of what the state can do, rational or not, when driven by animus. The courts will weigh in on the legality of these moves, but the damage is already being done. For transgender people, facing a hostile state bent on dismantling the delicate and still incomplete scaffolding of transgender rights, the situation is dire — an unrelenting assault on our ability to go about our daily lives.