One thing about our somehow once-again President Donald J Trump is that the man loves to sit at a desk like a feudal lord, surrounded by his (usually standing) Dear Supporters, and sign a piece of paper with a pen while having his picture taken. On inauguration day, he did so with even more theatrics than usual, signing over 100 executive orders, many of them signed on a small table placed atop a red carpet in an arena crowded with his fans. He signed Executive Orders for hours and hours and hours, like a performance art piece, throwing Sharpies into the audience to provide them with lasting souvenirs. Eventually he relocated from the arena to the Oval Office to sign even more orders. And as both leaked and predicted, some of those orders came directly for the LGBTQ+ community generally and trans people specifically. 

Trans Human rights lawyer Chase Strangio posted on his instagram Sunday, in advance of these orders, a warning — “The administration will issue some executive orders that do not and cannot change the law. They will be glorified press releases designed to create confusion and chaos… the media will exacerbate the chaos with inaccurate headlines designed to stoke fear and gain clicks, rather than provide information and context. All while diminishing the power and presence of organized resistance.”

This is an important thing to remember and hold close as we grapple with the potential outcomes for our community from Trump’s Executive Orders.

What Are Executive Orders?

Executive Orders are not laws. They are “written instruments through which a President can issue directives to shape policy.” They instruct federal agencies within the executive branch on how to interpret existing law, but they can’t give the president authority he doesn’t already possess. They are temporary — they can be reversed by the next president. Those that exceed presidential authority can face legal challenges — and likely will, from orgs like the ACLU. Only Congress can pass laws that create lasting change.

For example, he cannot simply end birthright citizenship by signing an executive order. The 14th Amendment guarantees citizenship for those born in the United States. That EO is already facing legal challenges.

Other important limitations of Executive Orders: They cannot change state law. They cannot amend any existing federal statutes, such as the Violence Against Women Act, which as of 2022 includes provisions to bolster access for survivors of all genders and created a LGBTQ services program. They have no jurisdiction over private entities, such as private schools, private sports leagues and camps.

What Will Trump’s Anti-Trans Executive Orders Actually Do?

Firstly, Trump cruelly revoked 150 Biden-era Executive Orders, including a handful related to apparently distressing causes like preventing discrimination on the basis of Gender Identity or Sexual Orientation and guaranteeing an educational environment free from anti-LGBTQ discrimination. Trump announced the disbandment of the Gender Policy Council again — a group established by Obama, removed by Trump in his first term, re-established by Biden and now, once again axed by Trump.

Trump repealed a Biden-era Executive Order that allowed transgender troops to serve in the military. This does not mean trans troops are effectively banned from the military starting now. However, his EO clears the way for that to happen. Once the ban is in place, it will engender “one of the largest layoffs of transgender people in history.” It could face legal challenges, but as per the 19th: “Without the federal protections granted under Biden, the legal precedent over the ban implemented in Trump’s first term remains: The Supreme Court in 2019 allowed him to enforce the ban after four separate courts had blocked it from taking effect.”

The centerpiece of his anti-trans agenda, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government Act, is a remarkable and frightening piece of writing. Trump has decided to frame his anti-trans goals as a Women’s Rights initiative, protecting women from having “biological men” in their bathrooms and on their sports teams, which it seems he hopes will obscure his administration’s actual lack of support for Women in all other areas of life, including reproductive rights.

The EO sets out to “establish male and female as biological reality and protect women from radical gender ideology” and codify the existence of just two “sexes.” The definition of sex/gender in the Executive Order is itself problematic and scientifically questionable, as it is based on the human production of a “reproductive cell” (e.g, egg, sperm), despite the fact that not even every cis person produces such cells.

He defines “Gender Identity” like so:

“Gender identity” reflects a fully internal and subjective sense of self, disconnected from biological reality and sex and existing on an infinite continuum, that does not provide a meaningful basis for identification and cannot be recognized as a replacement for sex.

And “Gender Ideology” like this:

“Gender ideology” replaces the biological category of sex with an ever-shifting concept of self-assessed gender identity, permitting the false claim that males can identify as and thus become women and vice versa, and requiring all institutions of society to regard this false claim as true. Gender ideology includes the idea that there is a vast spectrum of genders that are disconnected from one’s sex. Gender ideology is internally inconsistent, in that it diminishes sex as an identifiable or useful category but nevertheless maintains that it is possible for a person to be born in the wrong sexed body.

The EO directs federal agencies to change language and enforce laws in accordance with these definitions, asking all agencies to remove “all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology.”

Sec. 3 includes a directive to ensure that government-issued identification documents refer to the holder’s “sex,” as defined by the EO. Since 2022, non-binary people have been able to use an “X” gender marker on their passports, and this EO indicates Trump’s intention to remove that marker going forward, and also to seemingly require trans women and trans men to identify on their passports in accordance with their gender assigned at birth. Trump’s administration will face challenges here, too, due to already established rulings, laws and precedents. It’s unclear now if a successful policy change will impact already-issued passports or not.

Sec. 4 asks the AG and Homeland Security Secretary to ensure “males are not detained in women’s prisons or housed in women’s detention centers.” How this will pan out is also, believe it or not, unclear! It’s worth noting that The Prison Rape Elimination Act (PREA), which gives trans people who feel their safety is threatened a voice in determining where they are housed, holds more power than this EO, because it was passed unanimously by Congress in 2009. He called for an amendment to be made to that act, but only Congress can do that.

Trump’s directive to agencies to not consider transgender people when enforcing sex discrimination laws is also scary to consider. It does not leave trans people entirely unprotected, as many federal judges have found discrimination against trans people to be a form of sex discrimination. Still, this is an area of law that has been hotly debated for many many years now.

Trump has also directed the Attorney General to ensure freedom of expression around “the binary nature of sex and the right to single-sex spaces in workplaces and federally funded entities.” This would, as I understand it, mean that in Trump’s world, a public school teacher would be able to file suit against a school that fired him for refusing to use a student’s stated pronouns, for example.

What Do We Do Now?

The California Legislative LGBTQ Caucus sent a release to its followers imploring them “to remember that the impacts from these orders are neither immediate nor permanent. It will take time for these orders to work through their respective federal agencies and there will be opportunities for California to weigh in on behalf of Transgender, Gender Nonconforming, and Intersex (TGI) people. When those opportunities arise we will be ready.”

Regardless of their ultimate impact — which could very well be devastating —these Executive Orders have already made Trump’s supporters feel like he is Doing Stuff and Making Changes at an Unprecedented Rate due to his Immense Power and Popularity. This “shock-and-awe” approach to Executive Orders will tie up the courts for years to come, wasting endless piles of tax dollars, and at the very least, they set a certain tone. Biden’s Executive Orders that directed federal agencies to expand rights and protections for LGBTQ+ people still gave us hope, and Trump’s withdrawal from those initiatives does, accordingly, rip a lot of that hope out of our hands. While not all of the directives in these Executive Orders will come to fruition, many of them will in some form, and we will have to keep fighting and figure out how to rely on each other and support each other under these trying circumstances.

Speaking of supporting each other, Trump’s effective takeover of most major social media platforms is especially alarming considering how they have been used as tools to organize and share political information. X is owned by Trump’s boyfriend Elon Musk, Facebook is owned by Trump’s new best friend Mark Zuckerberg, and TikTok announced its reinstatement with a blistering ode to our Beloved Leader Donald Trump. If those platforms begin hiding the resistance from us, that doesn’t mean it no longer exists.

Maha Ibrahim, a program managing attorney at the Equal Rights Advocates, told the 19th that young LGBTQ+ people should pay attention to what’s happening and demand action from their elected officials: “We’ve got a lot of students in university right now, where all of their formative years, with the exception of one small gap, were spent under an administration that was trying to erase them. I’m less concerned about the force of law — I’m more concerned about the will and the energy and belief in LGBTQIA students that these rights have been fought for for decades in their name, and that we’re here to continue the fight and we haven’t abandoned them.”

Feature image by JIM WATSON/AFP via Getty Images

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