An Overview of the Anti-Transgender Executive Order (Part I)

All Men are Trans Men

The Anti-Transgender Executive Order was issued, as expected, yesterday. There has been good coverage thus far from Chris Geidner and Erin Reed. Check out what they have to say and give them a follow.

It may be encouraging to believe that this Executive Order won’t have any immediate impact—but that’s just not true. Some action will be delayed, yes, but the impact of many of its terms has already started.

I’ve chosen six points to cover from the Executive Order (we don’t have a EO number yet but should in the coming weeks):

1. Revoking previous Executive Actions

2. Codifying definitions

3. Identification documents

4. Data collection impact

5. Federal funding conditions

6. Federal bathroom ban

Tonight, I’ll be covering the first three. The rest, I’ll get to tomorrow.

1. Revoking Previous Executive Actions

As anticipated, the new administration explicitly revoked all but one of the Executive Orders which I predicted they would, and the final one seems to be on its way out per the anti-DEI Executive Order:

The decisions on how to undo the remaining regulatory actions, rules, and guidance which have been issued by the Agencies to protect the rights of transgender persons has been delegated to the Agencies themselves (section 7 of the EO). The agencies are directed in section 3 to “remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology.”

The agencies have until May 20, 2025, to report back to OMB on their progress.

You can keep up with the status of the previously issued executive actions that protected LGBTQ+ folks on this page of my website.

2. Codifying Definitions

The Executive Order outlines some truly odd definitions of “female” and “male,” along with other terms, and there is a directive to the Assistant to the President for Legislative Affairs to present proposed legislative language to codify the same to the President by February 19, 2025.

(d) “Female” means a person belonging, at conception, to the sex that produces the large reproductive cell.

(e) “Male” means a person belonging, at conception, to the sex that produces the small reproductive cell.

Fun fact: per the definition in the Executive Order, all men are trans men, because everyone starts out with a “large reproductive cell” and then only some folks go on to produce divisions which result in sperm production.

We know something about states trying to define “male” and “female” into law, as such provisions have been adopted in recent years in Idaho, Kansas, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, Tennessee, and Utah. None of the definitions in those bills are similar to the one in this Executive Order, so we don’t have any pending litigation that would be helpful.

By my count, there are also ‘definitions’ bills pending this year in Arizona, Illinois, Missouri, Nebraska (the previous issuance is an executive order), New Hampshire, South Carolina, Texas, and Wyoming. The definitions in this executive order are completely different from those, too.

We’ll have to wait and see how this one plays out.

3. Identification Documents

Section 3(d) requires that (federally issued) identification documents accurately reflect the holder’s “sex” and also require the same for the personnel records of federal employees. The EO explicitly lists passports, visas, and Global Entry cards as targets. For now, I’ll leave visas and Global Entry cards aside.

They’re not named, but I also expect that federal employee PIV cards—to the extent that they contain any gender markers—will be affected once someone figures out that they are a thing.

For the last few years, the State Department has allowed applicants to choose from “F” (female), “M” (male), or “X” (nonbinary) as the gender marker on a passport. There has been no need to provide any kind of medical certification or doctor’s letter, you just check the applicable gender designation on your passport application form. The process for changing a gender marker required an in-person renewal of your passport, but not much more.

Under this new Executive Order, there will no longer be an “X” option on passports, and it remains to be seen how the State Department will choose to administer the “M” and “F” gender marker determinations. Will they only accept a gender marker congruent with your ‘original’ birth certificate? What if your birth certificate now shows an ‘X’ gender marker?

There was a report that came out today saying that the new White House Press Secretary indicated as follows when asked about the retroactivity of the Executive Order vis-à-vis gender markers on passports, indicating that its terms would not be retroactive:

The White House told NOTUS that Monday’s executive order is not retroactive and does not invalidate old passports. However, if government-issued documents need to be renewed, they must reflect the person’s sex assigned at birth.

“They can still apply to renew their passport — they just have to use their God-given sex, which was decided at birth,” White House press secretary Karoline Leavitt said. “Thanks to President Trump, it is now the official policy of the federal government that there are only two sexes — male and female.”

It’s easy to want to find some hope in this statement, but I promise you that the words of a 27 year-old Press Secretary who just graduated college six years ago is not going to control the regulatory actions of or any future guidance issued by the State Department.

Govern yourselves accordingly.

Part II, tomorrow.

As always, build community. Be strategic. We’re all in this together.