In the hours after taking office for the second time, President Donald Trump signed numerous executive orders in quick succession. Among the diktats, he ordered the end of birthright citizenship as guaranteed in the Constitution and the expansion of the death penalty.
Another addressed transgender people and how the government should treat them. Like many of Trump’s other “Day 1” orders, it gets some fundamental points wrong and seems more concerned with scoring points in the culture war than advancing sensible policy.
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.
The order also scraps previous State Department changes that allowed transgender and nonbinary travelers to more easily change the gender on their passports. “Monday’s executive order is not retroactive and does not invalidate old passports,” the White House told NOTUS‘ Oriana González this week. “However, if government-issued documents need to be renewed, they must reflect the person’s sex assigned at birth.”
But perhaps most consequentially, Trump’s order demands that prisons house transgender inmates in facilities corresponding to their biological sex.
“The Attorney General and Secretary of Homeland Security shall ensure that males are not detained in women’s prisons or housed in women’s detention centers,” the order states. This appears to be based on the misconception that predatory men are routinely dressing as women to gain access to intimate women’s spaces, like restrooms, lockers rooms, and prisons.
Nearly a decade ago, North Carolina passed House Bill 2, which required everyone to use the public restrooms corresponding to their biological sex. The measure came after the Charlotte City Council passed an ordinance allowing transgender people to use the gendered bathroom of their choice; then-Gov. Pat McCrory, a Republican, warned the ordinance could “create major public safety issues by putting citizens in possible danger from deviant actions by individuals taking improper advantage of a bad policy.”
“From a scientific and evidence-based perspective, there is no current evidence that granting transgender individuals access to gender-corresponding restrooms results in an increase in sexual offenses,” according to a 2018 study in the Journal of the American Academy of Psychiatry and the Law.
It’s also rather uncommon for transgender women, who were born biologically male, to be housed in women’s prisons. “Out of 4,890 transgender state prisoners tracked in 45 states and Washington, D.C.,” NBC News in 2020 was able to confirm “only 15 cases in which a prisoner was housed” according to their preferred gender.
And trans inmates are more often targets for abuse than abusers themselves. “An estimated 35% of transgender inmates held in prisons and 34% held in local jails reported experiencing one or more incidents of sexual victimization by another inmate or facility staff in the past 12 months,” according to a 2015 report by the Bureau of Justice Statistics.
In 2018, the American Medical Association (AMA) “urge[d] that housing policies be changed to allow transgender prisoners to be placed in correctional facilities that are reflective of their affirmed gender status,” citing studies showing that transgender inmates are more than three times more likely to suffer physical violence and sexual abuse.
Much of Trump’s executive order reflects the social conservatism of the voters that propelled him to office for a second time. But the scope, scale, and implications of the order should give libertarians pause, even those who may agree with Trump ideologically.
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