President Donald Trump wasted no time attacking transgender people as soon as he was sworn in. Keeping with his campaign promises and proposals outlined in the far-right transition plan Project 2025, he signed an executive order on Monday that directed federal agencies to roll back protections for trans people. The order, which is framed as protecting women from “gender extremism,” declares that the United States government only recognizes two immutable sexes: male and female.
The administration went as far as including language rooted in the concept of fetal personhood — the idea that zygotes, embryos, and fetuses have the same rights as people — that defines “female” as “a person belonging, at conception, to the sex that produces the large reproductive cell” and “male” as “a person belonging, at conception, to the sex that produces the small reproductive cell.” (In addition to this language being anti-abortion, it’s also not scientifically sound: Embryos have phenotypically female genitalia until around six to seven weeks of gestation, according to the National Institutes of Health.) I called up Shawn Thomas Meerkamper, managing attorney at the Transgender Law Center, to unpack what this executive order means for transgender and nonbinary people across the country.
What is your general understanding of this executive order? Can you explain it to us in layman’s terms?
It directs all of the federal agencies in the executive branch to adopt new policies that pretend as if transgender people don’t exist. That encourages bullying and harassment of trans people. But most importantly, this order does not change anybody’s rights and it does not change the law. The order begins the process of changing federal regulations and policies. People are really scared about what all of this means, and what they need to know is that, unfortunately, we’re just going to have to wait and see.
Have we seen this type of executive order at the federal level? At the state level?
Early on, the Biden administration directed government agencies to implement the Supreme Court’s decision in Bostock v. Clayton County, which found that federal laws prohibiting sex discrimination also prohibit discrimination against people on the basis of being LGBT. There is a important distinction between a president directing federal agencies to comply with and enforce a Supreme Court decision and what we’re seeing here with the Trump administration, which is the opposite — the order ignores Supreme Court precedent and court decisions stretching back more than a decade that have held transgender people are protected by sex-discrimination law.
Over the last two years or so, several states have enacted anti-trans laws, especially ones targeting trans minors and their health care. Florida is probably the closest analog, in terms of the legislation that they’ve passed and the regulatory actions they’ve taken to attack trans folks in all areas of life. But so much of this packed into one order is not something that we’ve seen before.
What do you make of the Trump administration framing this order as “protecting women”? It’s notable to me that these anti-trans attacks rarely, if ever, acknowledge the existence of transgender men.
This order includes language about people “from the time of conception.” It really is unserious for an administration that, last time around, deliberately and successfully worked to end the right to abortion to now claim they are taking action to protect women. “Protecting women” is a distraction that we have seen in the civil-rights struggle forever; it was a justification behind race-segregation laws, and now it is an attempt to cast a vulnerable population as a threat. Transgender people are overwhelmingly the victims of harassment and violence. This is about making people afraid of their vulnerable neighbors in order to distract them from this administration’s ultimate aim, which is to make billionaires richer.
What are some of the parts of this order that stuck out to you?
One section calls for legislative language to be proposed within 30 days, so very shortly the conversation is going to shift to Congress. That’s one piece. Another is the section that relates to the Department of Housing and Urban Development, around access to homeless shelters. Last time Trump was in office, the Transgender Law Center worked on an extensive comment on the proposed repeal of the transgender equal-access rule that was in effect at the time. I spoke with a number of trans folks who had experienced homelessness, and the stories that they told made clear that denying equal access in this context is the same as denying access. I talked with trans women who would spend the night at a porta-potty because that was safer than being in a men’s shelter. The cruelty of this order, and the vulnerability of the folks will be impacted, really sticks out to me.
One of the most alarming parts of the order that could have an impact rather quickly is its targeting of federal documentation such as passports.
It’s important for people to understand that it is a misnomer to say that any person has a “legal” gender. There is no single document out there that says, “Your gender is officially this.” A lot of trans folks on our team who update their identity documents will get a court order which recognizes their gender, but that doesn’t do anything in and of itself. What we do have is a bunch of different agencies and institutions that have a gender marker on file for you. That includes the state DMV, or a passport issued by the State Department, if you have one. It might include your bank. That’s all to say, the government can’t tell you what your gender is. What the government can do is enact policies by which you can get an official document that has a gender marker on it. The Trump order directs three separate agency heads to ban trans folks from getting accurate identity documents — whether that be a passport, a visa, or, if you’re a federal employee, personnel records. But we don’t know what the timeline on that would be. As of this moment, trans folks’ rights have not changed.
What about incarcerated people and immigrants in detention who are trans? What does this order say about them?
I think a lot of folks are misinformed because our communities are the target of fear-mongering campaigns. The overwhelming majority of trans women who are incarcerated are in prisons for men. That is true in every single state and in the federal prisons as well. Additionally, the number of incarcerated trans people who have accessed surgical treatment for gender dysphoria is extremely small.
This order says that people should be assigned to prison based only on the sex they were assigned at birth. For folks who are trans and incarcerated, the level of terror at the moment is very high — and that is on top of a baseline level of terror they already live in day-to-day. There are federal regulations under the Prison Rape Elimination Act that have been in place since 2012, which say prisons are required to assess how much risk for sexual victimization an incarcerated person faces. In the case of trans and intersex people, the prison needs to take that information into account when considering whether to assign them to a men’s or women’s prison. Those regulations have been lacking in enforcement, though, which is why there’s only a handful of trans women actually incarcerated in women’s prisons. This order specifically references those regulations and directs federal officers to begin the process of changing them again.
The order also calls for taking incarcerated people’s health care away, and I want people to understand that when someone has been on hormone replacement therapy for many years, suddenly cutting them off from that treatment can have really serious health consequences.
You also referenced earlier how this order folds fetal-personhood language into its definitions of biological sex.
Trans health care is a reproductive justice issue, and there is a frightening overlap between actions to take away abortion rights and to limit or ban trans health care. In both situations, the government is telling you what you must do with your body. The government is forcing your body to go through something that you know isn’t right for you and, in doing so, is telling you who you are and who you have to be. Both abortion rights and trans health-care access are very basic questions of human freedom. I would think that even those who consider themselves conservative-leaning would agree the government doesn’t get to tell you who you are or how to live your life, which is what this is really about.
Do you expect this executive order to be challenged in court?
Executive orders can be tricky. Courts look into whether an order in and of itself changes people’s rights and obligations. It would be very challenging to bring a single lawsuit that takes on this order as a whole because — not to sound like a broken record! — this is a direction to other executive-branch officials to make new rules. But there is going to be a lot of litigation challenging future policy changes that are enacted in compliance with this order. At the end of the day, trans folks have always existed. As a community, we have supported each other and kept each other alive long before the government acknowledged our existence, and that’s gonna continue to be true.
This interview has been edited and condensed for length and clarity.