ACS - American Constitution Society

01/29/2025 | News release | Distributed by Public on 01/29/2025 13:41

Executive Orders and the Erasure of Trans People

The Trump administration, both in its first iteration and its current, has consistently shown hostility toward transgender and gender non-conforming people. During the first Trump administration, this hostility was most obvious in the revocation of the Obama administration's decision to allow openly trans people to serve in the military. In addition to a broad anti-trans executive order issued on day one, in a new executive order issued this week, the current Trump administration is once again trying to ban trans people from military service. But this time the administration is being even more frank in its attempts to demonize and erase trans and gender non-conforming people.

In 2018, then-Secretary of Defense Jim Mattis issued a memorandum at President Trump's direction, restricting military service for trans people. The memo justified the ban based on supposed concerns around mental health, medical and surgical transition, and application of sex-based standards in the military. The justifications the memo offered for the ban were certainly objectionable-based on stereotypes, double standards, and dubious medical evidence-but demonstrated an attempt to provide a patina of legitimacy for the administration's discriminatory policy.

In the executive order Trump issued this week, Prioritizing Military Excellence and Readiness, all pretense of medical, psychological, or social justification has been jettisoned. The executive order instead relies on a false and damaging narrative that transgender people do not even exist, stating:

[E]xpressing a false "gender identity" divergent from an individual's sex cannot satisfy the rigorous standards necessary for military service. Beyond the hormonal and surgical medical interventions involved, 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. A man's assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member.

In short, the order justifies the ban by denying trans people's existence while demonizing them as a group that inherently lacks honor, truthfulness, and discipline.

This blatant animus towards trans people has been on display since the first day of this new administration. The ludicrously and paternalistically titled, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, kicked off this effort at trans erasure by declaring, "It is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality," and requiring all federal agencies to adjust their policies to reflect this gender essentialism.

Furthermore, the executive order directed the Attorney General to "issue guidance to ensure the freedom to express the binary nature of sex and the right to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964." As the context of the executive order makes clear, the "freedom to express the binary nature of sex" includes permission to discriminate against and exclude trans people. The irony, or perhaps gall, of invoking the Civil Right Act of 1964 to justify discrimination against trans people would be laughable if it weren't so dangerous. Like the Office of Management and Budget memo purporting to freeze all financial assistance programs in order to root out so-called "woke gender ideology," among other things, the lawlessness of the executive order is troubling. This is especially true considering that a conservative dominated Supreme Court-in an opinion written by Justice Gorsuch and joined by Chief Justice Roberts-explicitly found that Title VII of the Civil Rights Act of 1964 protects trans people from discrimination in the workplace.

This flurry of executive action attempting to demonize and erase trans people comes at a time when the Supreme Court is considering a case asking the Court to determine whether denial of gender affirming healthcare for minors violates the Equal Protection Clause. The decision in that case may determine the extent to which we can rely on courts to protect the rights of trans people to fully participate in our society, including through military service, from the unilateral expression of animus and contempt displayed by this country's chief executive.

Equality and Liberty, LGBTQ Equality