Part II: An Overview of the Anti-Transgender Executive Order

They Figured it Out

The Anti-Transgender Executive Order was issued on Monday. I’m seeing a lot of coverage of it that is…less than accurate, even from trans* journalists.

This is part II of my overview the Executive Order. Hop below for more.

I selected six points to cover from the Executive Order; I covered 1-3 in yesterday’s post:

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 last three.

4. Data Collection Impact

As I was reading the Executive Order, my eyes were drawn to the passage in section 3(e):

“[a]gency forms that require an individual’s sex shall list male or female, and shall not request gender identity.”

It got me thinking about the SOGI (Sexual Orientation and Gender Identity) data collection initiatives which have been part of the work resulting from Executive Order 14075.

Executive Order 14075 was rescinded on Monday.

The Recommendations on the Best Practices for the Collection of [SOGI] Data on Federal Statistical Surveys—part of the work from Executive Order 14075—has not yet been officially repealed. It’s a fool’s errand to believe it will survive, though. To that end—the Recommendations document is no longer available on the White House website.

It is very likely that trans* folks will soon be erased from any federal statistical collection as being transgender. As I said in my prior post:

In the government, if you cannot measure a problem [issue], it doesn’t exist. Metrics are life.

5. Federal Funding Conditions

The biggest hammer the federal government can wield on non-federal entities is its funding power. This administration has figured out how to weaponize it to attack transgender people.

The federal government funds a wide variety of state and local institutions—and often imposes its policy goals via conditions on federal funding. For reasons far too complicated for me to tackle, state and local governments are often heavily dependent on federal funding for everything from schools, to roads, to health care—and everything in between.

The new Executive Order states:

(3)(g) Federal funds shall not be used to promote gender ideology.

Recipients of federal funding include hospitals, universities, public schools, foster care agencies, state governments, local governments, and non-profits of every type. I have no idea about the accuracy of the number, but the www.usaspending.gov/recipient website shows almost 75,000 entities that have received federal grant funding over the years.

Will this provision be interpreted to preclude coverage of gender affirming care for federal employees covered by FEHB? Medicaid or Medicare coverage of GAC? Recognition of transgender kids in foster care? Hospitals providing space for GAC?

Could some of this end up looking similar to the patchwork applicability of the Hyde Amendment? Or somehow worse than that?

The impact of anti-transgender federal funding conditions could be incredibly broad and happen quickly, at least by government standards. We’ll have to watch for the issuance of regulations, guidance, rules, memoranda, and everything else on this front.

6. Federal Bathroom Ban

Section (5)(d) directs that

Agencies shall effectuate this policy by taking appropriate action to ensure that intimate spaces designated for women, girls, or females (or for men, boys, or males) are designated by sex and not identity.

This sure reads to me like the beginning of a federal bathroom ban.

As the agency-by-agency policies roll out, one of the biggest ones to watch for is the General Services Agency, which has a wide-ranging facilities management function for the federal government. GSA owns and leases over 363 million square feet of space in 8,397 buildings nationwide, including courthouses, post offices, ports of entry, and a multitude of other facilities.

This entire Executive Order is a not-slow-enough-train wreck for trans* folks. It will take all of us to keep up with the chaos by reporting it out accurately and as quickly as possible.

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