WASHINGTON – President Trump's executive order rejecting liberal “gender ideology” and restoring the “biological truth” of two genders sets the stage for a legal battle in California and blue states over transgender students and adults.
Trump says his administration will only recognize “two genders, male and female” in federal policy and not “gender identity” that differs from “biological reality.”
“These genders cannot be changed,” he said in the executive session The order was placed this week. “Sex is not a synonym for 'gender identity' and does not include the term 'gender identity'.”
Trump's order fulfills a campaign promise and is likely to have far-reaching effects on federal regulations, from passports to prisons.
“Government forms indicating a person’s gender must indicate male or female,” it said, and prison officials “should ensure that men are not incarcerated in women’s prisons.”
But the order, which makes no mention of transgender people, runs counter to laws in California and other blue states that prohibit discrimination based on gender identity.
These state laws will not be overturned by a change in federal policy, but they will likely face legal challenges, including from new regulations from the Trump administration.
“In practice, this order means the government is not only denying transgender people rights, but also their very existence,” said Georgetown law professor David Cole, the former legal director of the ACLU. “There are approximately 1.5 million people in the United States who are transgender, and this reality cannot be denied by regulation.”
Jennifer Pizer, legal director at Lambda Legal in Los Angeles, sees the Trump order as an opening salvo in what could be a long legal battle.
“This is an ideological crusade that seeks to turn back the clock. They are trying to enforce the principle that there is no obligation to respect transgender people,” she said. “Trans people exist. We can’t erase them by writing a new definition.”
The Supreme Court has not ruled on whether government discrimination against transgender people is unconstitutional. Until now, it has largely been left to the states.
But in 2020, Cole won a 6-3 Supreme Court ruling This prohibits discrimination against employees based on their sexual orientation or gender identity in the workplace. Federal civil rights law says employers cannot discriminate based on race or sex, and the court, in an opinion written by Justice Neil M. Gorsuch, said discrimination against LGBTQ employees was sex discrimination.
This decision could prove significant in litigation over Trump administration regulations and blue state laws as courts seek to clarify the meaning of federal laws, including civil rights and education laws.
“The (Supreme) Court has already ruled that transgender discrimination is, by definition, a form of sex discrimination,” Cole said.
But the court's conservative majority has signaled it is likely to uphold laws in Republican-led states that restrict the rights of transgender youth.
California and other Democratic-led states do not ban doctors from prescribing puberty blockers or hormones to people under 18 who are diagnosed with gender dysphoria. But in December, the justices heard arguments in a Tennessee case and appeared poised to uphold that country's ban on such treatments for teenagers.
While a Tennessee ruling would uphold similar laws in Republican-led states, it would not impose those restrictions in California.
Legal experts said it was too early to say whether the new Republican administration would be able to push through significant changes in Democratic-led states.
One option is to reinterpret Title IX, the 1972 education law that prohibits schools and colleges from discriminating based on sex.
Last year, under the Biden administration, the Education Department announced new Title IX regulations favored by progressives. One provision would have allowed transgender students to use restrooms or lockers consistent with their gender identity.
Republican states have sued and sought court orders against these regulations, and Trump has now repealed them.
The new administration could adopt regulations that take the opposite approach and prohibit schools from recognizing a student's “gender identity.”
Another widely discussed option would be to require students who play sports to compete against others of the same biological sex, regardless of gender identity.
Such rule changes would likely be challenged in court, but if upheld they would apply in California and other blue states.
Schools and colleges receive federal funding and are required to comply with federal regulations.
“At this point, it’s hard to know what (Trump’s order) will mean in California. The executive order itself applied only to the federal government,” said Erwin Chemerinsky, dean of UC Berkeley Law School. “The impact on states with different policies is unclear at this time.”