How Is Trump’s Anti-Trans Executive Order Being Used? Here’s What We Know.

Within hours of his inauguration as the 47th president of the United States, Donald Trump began signing a record-breaking blitz of executive orders. From ending birthright citizenship to withdrawing the United States from the World Health Organization, the far-reaching directives paint a disturbing picture of how Trump plans to refashion national policy over the next four years to serve the MAGA agenda.

One executive order, titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” takes explicit aim at transgender people’s very existence, stating that it is the official policy of the U.S. government to recognize only two sexes, male and female, and that these categories are immutable and determined at conception.

Right now, the full extent to which many of Trump’s executive orders will play out is still unknown, but there are some immediate ramifications. To learn more about what the gender directive means for the civil rights of trans people, Truthout spoke with Gillian Branstetter, a communications strategist at the American Civil Liberties Union’s (ACLU) Women’s Rights Project and LGBTQ & HIV Project. The ACLU has been a key player in major litigation over LGTBQ rights, including seeking to maintain trans people’s access to gender-affirming care.

The interview below has been edited for length and clarity.

Schuyler Mitchell: What do we know right now about the most immediate impacts of President Donald Trump’s new anti-trans executive order?

Gillian Branstetter: The first most immediate impact is on transgender people who are currently incarcerated in federal custody, so either in federal prison managed by the Bureau of Prisons (BOP), immigration detention, or some other federal facility. The order implements a blanket policy forcing people to be placed in facilities based on their sex assigned at birth.

This is alarming for a few reasons. First, most incarcerated transgender people are already imprisoned based on their sex assigned at birth, simply because prisons have never been very lawful places. Still, for some time now, courts have held that transgender people do have particular rights when in prison, including under the Prison Rape Elimination Act (PREA), which says prisons must place people on a case-by-case basis.

PREA was passed in 2003, and there was a decadelong review into what policies should be implemented at the facility management level in order to prevent sexual violence, particularly against folks who are especially vulnerable to sexual violence, which includes transgender people. In 2012, a commission released guidelines that recommended that prison officials assess each person in their custody on a case-by-case basis and said they must take into account the fact that transgender people face an inordinately high risk for sexual violence according to the Bureau of Justice Statistics. Incarcerated transgender people face nine times the risk of being sexually assaulted in prison compared to their cisgender peers. Enforcing a blanket policy, as the Trump administration is outlining, is extremely dangerous. We have heard from defense attorneys that those relocations are already taking place in federal prisons now.

The administration also calls for the BOP to put an end to any provision of gender-affirming medical care for incarcerated people, including folks who have received this care for decades. It’s already very difficult to access gender-affirming care in any prison, but courts have long held that withholding medically necessary care of any kind from somebody who is incarcerated is a violation of the Eighth Amendment — and, more specifically, they’ve held that this certainly includes access to gender-affirming care.

I think it’s important to start there, because trans rights often get pulled into the abstract. But the crisis of violence and dehumanization and debasement that trans folks are facing in our prison system is one of the greater crises that trans people are facing in this country, period. Especially given that trans people are more likely to live in poverty, we’re overrepresented in the sex trade, we’re overrepresented in counts of homeless populations and less likely to be sheltered — it also makes it far more likely that a transgender person is going to be arrested and incarcerated in the first place.

The other area where we’re seeing the executive order being implemented rather quickly is in regard to federal documents. Passports, but also immigration records, military service records, federal employment records, social security records — right now, we know that the State Department has suspended any application that was requesting an update to the gender marker on a U.S. passport, or any request for an X gender marker.

What happens to people who are in the process of requesting a passport gender update or were hoping to soon?

Both the original passport and the supporting documents sent in in such applications are currently being withheld by the passport offices and not being returned to the people who sent them. They haven’t really outlined what the new policy is at this point, but it’s likely to be a blanket ban on anyone updating the gender marker on their passport beyond their sex assigned at birth.

This is alarming for a few reasons. Your passport serves as your freedom of mobility. Forcing transgender people to carry documents that could potentially out them as transgender, as well as violate what they know about themselves to be true, is unconstitutional compelled speech — we’ve successfully challenged such policies in regard to birth certificates and driver’s licenses — and it puts trans people in a particular kind of danger.

Do we know what will happen to trans people who have already updated their passport but will need to renew in the future? Will their ability to renew their passport be dependent on whether they were able to change their birth certificate? And do we know what will happen right now if people travel using a passport with an X or with a gender marker that wasn’t assigned at birth?

The short answer is we just don’t have enough information yet to say. The administration has said they will not be applying the policy retroactively, but that has not been made concrete by any drafted policy that we’ve seen.

We’re learning more every day about how Trump’s order is expected to be enforced across the federal government. For instance, the order also calls for defunding any federal institution that promotes “gender ideology” or ending any federal funding for “transition services.” That obviously implicates a broad range of issues, including what schools are doing to protect transgender students and access to gender-affirming medical care, but how those policies become real is yet to be seen. They’ll likely be the focus of a lot of lengthy rule-making, so they’ll take some time, because they have to go through the notice and comment process.

The best way to think about this order is as a playbook that the administration wants to run. But they can’t do all of it at once — even though they may try.

One of the most important things to emphasize is that nothing that this order says or does changes the law. We’re committed to upholding transgender people’s right to equal justice under law, and that will remain true.

You mentioned that this executive order doesn’t change the law itself. In that vein, what have the courts already said about trans people’s right to gender-affirming care in prisons? What legal precedent is in place that could protect against these attacks?

There is a circuit split right now. We hold that the withholding of any medically necessary care — including gender-affirming care — is a violation of someone’s Eighth Amendment right to be free of cruel and unusual punishment in prison. I think people’s reaction to that in the public sphere, for instance the way this issue was vaulted to the front of the presidential campaign, reveals how far we have to go with helping people understand why we describe this care as medically necessary.

Gender-affirming care is really the foundation of trans people’s lives, and to lose access to it is not just psychologically existential, but also physically alarming, especially for trans folks whose bodies can no longer produce hormones. It can be very difficult for trans people to get access to this care while in custody, and not everyone who has sued has won, but obviously we’re committed to fighting to ensure they maintain that access under the Eighth Amendment and remain firm to that precedent.

Part of Trump’s executive order also overturns former President Joe Biden’s federal guidance on sex discrimination under Title VII of the 1964 Civil Rights Act. Biden’s executive order directed federal agencies on how to enforce the Supreme Court’s Bostock v. Clayton County decision, which held that discriminating against someone because they’re LGBTQ is sex discrimination. What do these dueling executive orders mean, and how do they relate to the Supreme Court’s ruling?

In 2020, the Supreme Court issued a ruling that workers who had been fired because they were gay or transgender had been discriminated against under Title VII of the 1964 Civil Right Act, which prohibits sex discrimination in employment. Justice Neil Gorsuch, who wrote the opinion, says explicitly, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

That is important, because even though the Supreme Court did not specifically rule on other sex nondiscrimination laws, you don’t have to be a great legal mind to see how that logic might apply — including to Title IX, which outlawed sex discrimination in schools, or to Section 1557 of the Affordable Care Act, which prohibited sex discrimination in health care, or to the Fair Housing Act, which prohibited sex discrimination in housing.

So, the Biden administration issued an executive order on day one enforcing Bostock, not just as applied to Title VII, but applied to these other precedents as well. Different agencies within the federal government then began issuing guidance and beginning rule-making to interpret sex discrimination law as prohibiting discrimination on the basis of sexual orientation or gender identity. They were sued by Republican states pretty much immediately. So what Trump did is withdraw that executive order, but it does not rewrite the Supreme Court decision.

When the Bostock decision came down, it was a real shock to right-wing groups. They’d stolen a Supreme Court seat from the country’s first Black president and nominated Brett Kavanaugh — so how could they possibly have lost on this issue 6 to 3? They perceive transgender people’s existence in public life as an existential threat to their broader project of enforcing rigid gender stereotypes through the full force of the law. If trans people can lead joyful, meaningful lives, that is a real threat to their greater project.

So, after Bostock, we began to see the number of bills targeting the rights of transgender people introduced in state legislatures spike. In 2020 and the winter and spring before Bostock, there were only a couple dozen anti-trans bills that had been issued in the state legislature. In 2021, the first legislative session after Bostock, it was over 150. And then it was over 300. And now it’s over 500 every year.

Those are being designed and proposed by the same organizations — Alliance Defending Freedom, the Heritage Foundation, Family Policy Alliance — specifically to reach the Supreme Court and narrow the reach of Bostock. Right-wing groups are basically attempting to suggest that, unless you were explicitly fired because you are gay or transgender, that is the only form of discrimination that the court has said applies.

Importantly, this is a question that’s in front of the Supreme Court right now in U.S. v. Skrmetti, which is the ACLU’s challenge to Tennessee’s ban on gender-affirming care. Oral arguments were on December 4. And a major question in that case is whether Tennessee’s law discriminates on the basis of sex because it bans medical treatments for transgender youth that are readily allowed for youth who are not transgender. The estrogen that our 15-year-old client takes is no different than the estrogen that millions of cisgender women and girls take every single day, but it is only her health care, and frankly my health care, that is implicated in Tennessee’s ban. The court has to decide whether that’s a sex-based line. To which we would, of course, argue yes.

What the Trump administration is saying is they would like to draw sex-based lines. Sex-based lines are their favorite thing! And they’re saying sex-based lines are biological and immutable, but also they require the full force of law or else they collapse entirely. They want to apply that across anywhere where sex discrimination is prohibited.

I’d like to end by thinking about how we can respond to this moment. Is there anything that trans people can or should be doing to anticipate the different ways these orders will play out in the coming months? How can we foster solidarity and help protect our communities?

We’re getting a lot of questions about passports. Right now, applications for gender changes on U.S. passports have been suspended according to the State Department. When you’re applying for such a change, you have to send in your old passport and supporting documents — that can be court orders, birth certificates, you name it. But if you file an application right now to renew your passport, you run the risk of those documents not being returned to you. That is very important to know. You run the risk of not having a passport at all, because the State Department will retain those documents.

Second, I would encourage folks to follow the ACLU and follow their ACLU state affiliate to get involved at the local level with their LGBT community. I stress that because I want folks to get good information. In a moment like this, there’s a lot we don’t know, and that will breed a lot of anxiety, speculation and fear. It’s very important that you ensure the information you’re getting about these policies and their enforcements is grounded in reality and not mere speculation or rumor. We are monitoring the situation extremely closely.

So right now, for example, we don’t know how the provision that federal funds shouldn’t be used to “promote gender ideology” is going to play out in schools. We expect it to have an impact, but there is no immediate change.

Right. And, importantly, it doesn’t change the actual law. So, nobody should take these as immediate directives of what their rights are right now.

The immediate effects are already pretty dire, especially for trans folks in federal custody and certainly the idea of losing a document that you need to move about the world is likewise very concerning. It’s not that everything is hunky dory. Of course it’s not. But I’ve worked with trans advocates in deep red states, where all of these policies have already been enacted and enforced, so we know what they look like. We know how to navigate them and help folks do what they can.

The best way to think about this order is as a playbook that the administration wants to run. But they can’t do all of it at once — even though they may try.