PRESIDENT TRUMP'S TRANSGENDER EXECUTIVE ORDERS ARE MEANINGLESS: Resist and do not comply

The lynchpin to the Republican anti-transgender crusade is President Trump's January 25, 2025 Executive Order entitled "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government."

This EO puts forth three critical "arguments" (better characterized as "assertions") that form the foundation for the enforcement of the order and all other EOs regarding transgender American (not competing in athletics, etc.)

It is important to understand that most of this Executive Order is either window dressing (an opinion section at the beginning about, grunt, grunt, scratch, scratch, "transgender bad") or are specific directives to the State Department regarding transgender and nonbinary documents. The first opinion section is legally meaningless in all senses except propaganda. The directives section only has force of law if (a) it falls within the scope of the President's power to administer the government AND the legal assertions underpinning the directives are sound (or at least make some kind of approach toward being rational).

In this case the President would probably win the argument that he has the requisite authority over the State Department issuance of passports, since former President Biden permitted the change in gender markers on such documents by Executive Order in 2022.

On the other hand, the legal representations in the body of the Executive Order are utter and complete garbage, Just ask conservative Supreme Court Associate Justice Neil Gorsuch, since he wrote the majority opinion in Bostock v Clayton County in June 2022.

Here are the three key contentions in President Trump's "Defending Women" EO:

1. The EO asserts rather than proves its interpretations of "sex" and "gender," first contending that 

1a. "It is the policy of the United States to recognize two sexes, male and female.  These sexes are not changeable and are grounded in fundamental and incontrovertible reality.  Under my direction, the Executive Branch will enforce all sex-protective laws to promote this reality."

1b. “Sex” shall refer to an individual’s immutable biological classification as either male or female.  “Sex” is not a synonym for and does not include the concept of “gender identity.”

1c. “'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.

1d. "'Gender identity' reflects a fully internal and subjective sense of self, disconnected from biological reality and sex and existing on an infinite continuum.'

There are several key points here that will come to the attention of any court

First, the EO itself actually makes no mention of science. Indeed, the terms "science," "biology," "genetics," "research," "genes," and "chromosomes" do not appear in the document; nor does any reference to scientific research to confirm any of these concepts or definitions.

Instead, the EO relies on such pseudo-scientific terms as "fundamental and incontrovertible reality"; "an individual's immutable biological classification": "self-assessed gender identity"; and "a fully internal and subjective sense of self, disconnected from biological reality."

Nonetheless, these terms DO make three scientifically testable assertions: (a) that sex is immutable after birth; (b) that all "gender identity" is based only on an "internal and subjective sense of self"; and that (c) the existence of transgender identity is "disconnected from biological reality."

ALL that has to be done to invalidate these in a court of law is to provide peer-reviewed scientific research that directly and consistently contradicts these assertions. This is simply and easily done. A single search for the term "transgender brain" on Google Scholar pulls up 58 peer reviewed articles documenting the neurological differences in the brains of transgender individuals. Similar searches regarding the neurological development of gender preceding the development of genitalia.

If you are looking for a single source that captures most of the current science, go here to this article on PubMed from the International Journal of Molecular Science: Ristori J, Cocchetti C, Romani A, Mazzoli F, Vignozzi L, Maggi M, Fisher AD. Brain Sex Differences Related to Gender Identity Development: Genes or Hormones? Int J Mol Sci. 2020 Mar 19;21(6):2123. doi: 10.3390/ijms21062123. PMID: 32204531; PMCID: PMC7139786.

To give you an idea of the extent to which biology (you know, the science never mentioned in the EO) has found objectively identifiable neurological difference between cis-women and trans women, and cis-men and trans men, here's three paragraphs of heavy sledding:

////Indeed, cismen and ciswomen present anatomical differences in the total brain volume, as well as in several sex-dimorphic structures. In particular, the total brain volume is bigger in cismen, and in transgender men similar volumes to the assigned gender at birth were found [12,13,14,15]. However, the total intracranial volume in transwomen resulted to be in between male and female controls [12]. Furthermore, sex differences have been observed in cortical thickness that is higher in ciswomen compared to cismen in several regions [16,17]. Studies conducted on transgender individuals reported signs of feminisation in cortical thickness of transwomen, while no sign of masculinisation was found in transmen [18,19].

////Another sexual dimorphic area seems to be represented by the amygdala and the hippocampus. Indeed, the amygdala is larger in cismen and with a higher density of androgen than oestrogen receptors, whereas portions of the hippocampus are larger in women, with a higher density of oestrogen than androgen receptors (AR) [20,21].

////These differences raise the question whether cross-gender identifications reflect the brain anatomy and/or function. For this reason, a growing literature is focusing, with both post-mortem and in vivo neuroimaging studies, on structural and functional differences between transgender and cisgender individuals in several areas of the brain, especially in those that show sexual dimorphism.////

It's pretty clear that plaintiffs will be able to bring into court abundant evidence that transgender individuals are NOT experiencing merely a "subjective sense of self," but the consequences of observable, identifiable brain differences. Since this is the case, the entire set of assertions that the existence of transgender identity is "disconnected from biological reality". falls by the wayside and cannot be used to drive the direct provisions of the EO.

This is why the Republicans are attempting to eliminate as many scholarly papers published under government auspices as possible.

An amusing aside: it is also possible to argue the mutability of gender from a socio-cultural-historical perspective. Biblical scholar Dr Dan McClellan, for example, lays out Talmudic acceptance of at least six additional genders (not counting cismen and ciswomen), including two for children who are born with the apparent genitalia and characteristics for one gender but who develop at puberty the characteristics of the other gender. This brief note does not do the video justice: watch it here.(

So any illusion that this Executive Order is based either on scientific research or the evidence of history can be dispelled immediately in court. The administration has not even sought to back up its position with pseudoscience.

2. The EO then orders that all references to "sex" and "gender" be rewritten based on its non-scientific understanding of the topic: "Each agency should therefore give the terms 'sex', 'male', 'female', 'men', 'women', 'boys' and 'girls' the meanings set forth in section 2 of this order when interpreting or applying statutes, regulations, or guidance and in all other official agency business, documents, and communications."

The problem is that these terms already have existing medical, scientific, and even legal definitions that do not agree with the pablum spewed here. See, for example, "What do we mean by SEX and GENDER?" by the Yale University School of Medicine.

Essentially what the Project 2025 smurfs who wrote this EO for the President did was construct definitions equivalent to saying that "African-American" refers to "a mentally inferior race of humans." Presidents do not have the authority to redefine the world for themselves in Executive Orders. For detailed explanations of those limitations visit FindLaw and the American Civil Liberties Union.

IF the proposed new definitions do not have the force of precedent in existing science or law the President lacks the constitutional authority to change them arbitrarily, an issue accidentally settled by the Supreme Court in YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952).

3. The Executive Order cannot, however dispense with the most recent major ruling on transgender Americans by the Supreme Court in Bostock v Clayton County (2022), so President Trump's ghostwriters simply lie about the decision.

This is what the Executive Order says about Bostock:

////The prior Administration argued that the Supreme Court’s decision in Bostock v. Clayton County (2020), which addressed Title VII of the Civil Rights Act of 1964, requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act.  This position is legally untenable and has harmed women.  The Attorney General shall therefore immediately issue guidance to agencies to correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities.////

This is all (what's the technical term? oh, yeah ...) utter bullshit.

The Bostock opinion was written Neil Gorsuch, and even the quickest reading demolishes this ridiculous assertion. Bostock was about a suit over discriminatory termination of individuals based on being either "homosexual or transgender." But Justice Gorsuch made a number of things quite clear about the rights of transgender Americans in the majority opinion:

To wit:

3a. That being "homosexual" and "transgender" both represented protected categories in employment: 

You may not be recognizing immediately what Gorsuch has done here, but he has specifically according protections again "sex discrimination" to transgender people without imposing any test on them beyond their assertion that they are transgender. This is because Gorsuch recognizes that you cannot impose any test on ANY LGBTQ+ individual beyond their assertion of their sexuality.

Gorsuch thus not only establishes transgender individuals as protected under Title VI, but he also specifically establishes transgender individuals as a specific, legally definable category of human beings under federal law.

3b. More to the point, Gorsuch divorces the term "transgender" from genitalia and reframes into "attraction" in such fashion that it leaves no room for any employer (or, by extension, federal agency) to discriminate on either basis. In point of face Gorsuch is incredibly clear about transgender individuals and even gives a specific example:

I want to repeat that two-sentence segment in the last paragraph to burn it into your brain: "Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth." As he states again in the next sentence, this is "an unmistakable and impermissable role" in discriminating against a transgender individual.

3c. The inevitable consequence of Bostock is that federal law is required to recognize transgender designation as legitimate, and is NOT accorded any authority to test or dismiss an individual's asserted gender or sexual identity.

Far from misconstruing Bostock, the Biden administration interpreted it accurately, which is why the Biden administration rules on access to restroom facilities has not been successfully challenged in court. 

The reality here is that the Trump administration is as badly off base with regard to Bostock as it is to the 14th Amendment with regard to birthright citizenship.

A President cannot, in the form of an Executive Order, merely wave his hand and cause a detailed (and recent) Supreme Court decision to evaporate in smoke.

The conclusions here are pretty damn solid, and deserve to be recapitulated simply:

1. The Executive Order's definitions are neither compliant with science, history, or relevant Supreme Court decisions.

2. If those definitions are not legitimate, then any orders promulgated based on them have no force of law.

3. The status of being transgender is federally protected by the Supreme Court ruling in Bostock vs Clayton County (2022) that to do otherwise violates Title VI.

Moreover, the decision-making process regarding sex/gender on birth certificates or state-issued identity cards is the prerogative of the states, not the feds: "The processes by which an individual can change the gender marker on their driver's license and/or birth certificate to accurately reflect their gender identity are governed by state laws and administrative policies."

If the State of Delaware certifies a gender change on a birth certificate or State ID, Bostock and Title IV requires that both the State Department and the Social Security Administration accept it.

Do not comply. CONTINUE, if you are financially able, to apply for new passports so that, if it comes down to it, yuo will eventually be able to join a class-action suit. When the Republican administration loses, having been part of the certified class will put you at the top of the list for corrected document.

Yes, this can possibly take years, or a federal judge could strike it down next week. (I am not too sanguine about that because at least one of the briefs I've read challenging this EO is pretty weak.)

Do not let racist, homophobic Republican assholes make you think they can wave their hands and disappear you from the law ... unless you give in to them without fighting.