On January 20, President Trump signed an executive order redefining the word “sex” in federal programs and services to refer only to biological characteristics “at conception” and as unchangeable.
A new report from the Williams Institute at UCLA School of Law provides an analysis of the order. It also examines how transgender, nonbinary, and intersex people could be impacted in a variety of federal policy areas, including nondiscrimination laws, identity documents, prisons, and sex-segregated spaces.
The executive order could affect many Americans. The Williams Institute estimates that 1.6 million people aged 13 and older identify as transgender, and 1.2 million LGBTQ adults identify as nonbinary. As many as 5 million people in the U.S. may be intersex, according to the U.S. Department of Health and Human Services.
“The true impact of President Trump’s executive order will take time to fully understand. Implementing the directives will face federal procedural constraints and will almost certainly be subject to extensive litigation,” said lead author Elana Redfield, Federal Policy Director at the Williams Institute. “Regardless of the outcomes, there are likely to be negative effects on the mental health and well-being of LGBTQ individuals, particularly the transgender, nonbinary, and intersex Americans most directly affected by these policies.”
Nondiscrimination Laws
- Background: After years of lower court rulings establishing that the meaning of “sex” under nondiscrimination laws included sexual orientation and gender identity, the U.S. Supreme Court ruled decisively in 2020 in Bostock v. Clayton County that Title VII’s prohibition of sex discrimination in employment applies to sexual orientation and gender identity. President Biden directed federal agencies to assess whether this reasoning would also apply to protections for LGBTQ individuals in other areas like education, housing, and health care.
- Impact: The executive order seeks to reverse the application of Bostock to other federal laws and formally redefine them to exclude gender identity.
Identity Documents
- Background: Under President Biden, Department of State policy permitted U.S. passports to be changed upon request, allowing M, F, and X designations.
- Impact: The executive order would require passports to “accurately reflect the holder’s sex,” defined in the order based solely on reproductive biology “at conception.”
Federal Prisons
- Background: Consistent with longstanding guidance under the Prison Rape Elimination Act, the Biden administration permitted consideration of requests made by incarcerated transgender people to be placed in facilities based on gender identity and receive appropriate health care.
- Impact: The new administration seeks to prohibit transgender prisoners from being held in facilities based on gender identity and prevent federal funding from being used for the provision of gender-affirming care in prisons.
Sex-Segregated Spaces
- Background: President Trump previously attempted to enact a rule to bar transgender women from women’s shelters; however, that rule was rolled back by the Biden administration, which maintained that transgender people should be able to access federally funded emergency shelters based on gender identity.
- Impact: The executive order expresses the president’s intention to designate federally funded or operated sex-separated spaces, such as homeless shelters and intimate partner violence shelters, according to the redefinition of “sex” and not gender identity. The order’s broad language would also apply to other federally funded sex-segregated spaces, particularly spaces where individuals change clothes or shower, such as locker rooms.
In addition to the specific areas targeted above, the report explores the potential impact of the executive order on bathrooms, sports participation, health care, and data collection and research.