An executive order President Donald Trump signed on his first day back in office offers a new federal government definition of the sexes that could have a major impact on transgender people nationwide.
The order calls for the federal government to define sex as only male or female and for that to be reflected on official documents such as passports and policies such as federal prison assignments. As for federal spending, it’s not clear what his vow to end broader gender classifications will mean on the ground.
Many of the provisions are likely to be challenged in court.
Here’s a look at the order.
Defining male and female based on cells that don’t exist at conception
The order declares that there are just two sexes, male and female. It rejects that people can transition from one gender to another or be considered something other than male or female such as nonbinary, which describes people who don’t identify as strictly men or women, or intersex.
The position reflects what many social conservatives have called for — and conflicts with what the American Medical Association and other mainstream medical groups say: that extensive scientific research suggests sex and gender are better understood as a spectrum than as an either-or definition.
Trump’s order says it is intended to protect women’s spaces from those who “self-identify” as women.
It defines the sexes in an unconventional way, based on the reproductive cells — large cells in females or small ones in males. And it suggests that humans have those cells at conception.
Biologists say that’s a problem because egg cells develop many weeks later, and sperm cells are produced at puberty, not at conception.
“At that stage, sexual differentiation has not started to take place,” said Carl Bergstrom, a University of Washington evolutionary biologist. “I can’t see any logically coherent way to interpret the definition in this executive order, given the addition of the phrase ‘at conception.’”
Bergstrom said a scientific explanation could specify sex chromosomes, but the executive order seems to deliberately avoid that, presumably to sidestep the range of variations that include intersex people, who have physical traits that don’t fit typical definitions for male or female categories. (edited)
What parts of the order are in effect?
The order has been signed, but much of it requires more federal action.
“Nothing is in effect,” said Heron Greenesmith, deputy director of policy at the Transgender Law Center.
The executive order tells one White House staff member to draft a bill for Congress within 30 days that would codify the definitions into law.
Federal agencies must tell the president within 120 days what they’ve done to comply with the order. Some parts might require going through the regulatory process or passing new laws.
Omar Gonzalez-Pagan, a Lambda Legal lawyer, said on a call with journalists this week that the order does not change current law but rather creates “a clear signal and road map of where this administration’s policies lie when it comes to transgender people.”
State laws on participation in sports, bathroom use, gender-affirming care and other issues are not directly affected.
What does it mean for federally-issued documents?
The order calls for passports, visas and Global Entry cards to reflect the administration’s definition of sexes.
The State Department, which is responsible for passports, declined to answer questions about the current state of policy. The order suggests getting rid of the “X” designation that has been available on passports since 2021 after a long legal battle waged by an intersex activist.
A department webpage that described how people could change their gender marker was taken offline, and Chase Strangio, an ACLU lawyer, said it’s unlikely that any new application to change the gender marker on a passport will be approved.
What about transgender federal prison inmates?
The order contains specific details on how it should apply in federal prisons, which house nearly 2,300 transgender inmates — about 1.5% of the total population.
It calls for housing transgender women — there are more than 1,500 — in men’s prisons, and for halting gender-affirming medical care.
At least two transgender inmates have had government-funded gender-affirming surgery in recent years as a result of court orders. A larger number have received other treatment, such as hormones.
Sarah Warbelow, legal director at Human Rights Campaign, said court orders that grant inmates access to treatment remain in effect, even if federal policy changes.
The ACLU says it’s heard from some defense lawyers that incarcerated transgender women were being moved into isolation or being told they would be transferred to men’s prisons.
The Bureau of Prisons did not respond to questions about whether inmates are to be moved.
Will this stop Medicaid from paying for gender-affirming care?
Medicaid, a joint federal-state health insurance program for lower-income people, covers gender-affirming care in some states.
Former President Joe Biden’s administration adopted a rule to make it do so nationally. But judges put that on hold.
So far, it’s unclear what might happen to the coverage in states that chose to offer it.
Lindsey Dawson, director of LGBTQ health policy at the health policy research organization KFF, said that eliminating the coverage where it’s already in place would likely involve a long process — and, like others, would probably face court challenges.
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