Trump’s “Two Sexes” Executive Order: What Does It Mean?

“As of today, it will henceforth be the official policy of the United States government that there are only two genders, male and female.”

Shortly after his inauguration, Donald Trump signed several executive orders, including one titled, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” This executive order is long and detailed, outlining numerous ways the Trump administration seeks to preclude legal protections or recognition for transgender, gender non-conforming, or intersex people.

This executive order is not a law. Rather, it is a directive by the President to federal secretaries and agencies with instructions or requests for reports. Executive orders are often used for political messaging or to signal intent for an incoming administration.

This order is offensive, devoid of scientific reality, and beyond harmful to the transgender, gender non-conforming, and intersex communities. Individuals should understand the executive order, what it means, and what they can do to protect and prepare themselves for anticipated changes.

 

What Does It Do?

A.     Establishing a Policy of Two Sexes

The executive order claims that it is the policy of the United States that there are two sexes, male and female. It defines several terms, including “sex,” “women,” “men,” “female,” and “male,”  and states that “women are biologically distinct from men.”

“Sex,” specifically, is defined as “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.’”

Within 30 days, the Secretary of Health and Human Services (HHS) is directed to provide the public “clear guidance” on the definitions of sexes outlined in the executive order.

B.     Diminishing Gender Identity and Eliminating “Gender Ideology”

The order intends to erase the use or function of the term “gender identity.” It specifically directs federal agencies to remove or cease making statements, forms, or messages that promote “gender ideology.” Federal agency forms may only list an individual’s sex as male or female, and may not request gender identity. When enforcing sex-based distinctions, all federal agencies and employees will use the term “sex” and not “gender.”

The order also states that “[f]ederal funds shall not be used to promote gender ideology.”

C.     Utilizing “Sex Designation” Instead of Gender Markers on Federal Documents

Federal secretaries, including the Secretaries of State and Homeland Security and the Director of the Office of Personnel Management, shall require that federally-issued documents – including passports, visas, Global Entry Cards, and government-issued IDs – “accurately reflect the holder’s sex.”

This provision will likely impact an applicant’s ability to get the correct gender marker on passports, in their Social Security accounts, or on a Real ID which may be subject to federal rules. However, this provision is not effective immediately; it does not include a timeline for implementing these rules; and it does not specify how the Department of State or other agencies will be determining an applicant’s sex.

D.     Designating “Intimate Spaces” by Sex, Not Gender Identity

This section of the executive order is directed at prisons, rape shelters, and “intimate spaces.”

Agencies are directed to ensure that “intimate spaces designated for women [or men] are designated by sex and not identity.” The order specifically directs the Attorney General and Secretary of Homeland Security to “ensure that males are not detained in women’s prisons or housed in women’s detention centers.”

The order states that the Attorney General and Secretary may amend existing documents and laws that directly contradict Trump’s executive order so as to comply with the order, including:

• Interpretation guidance regarding the Americans with Disabilities Act (ADA), which protects gender dysphoria under the ADA as of 2022
• 28 CFR § 115.41 of the Code of Federal Regulations, a law which requires the screening of inmates for the risks of sexual assault or abuse when being detained to assist with proper placement and currently allows assessors to take the inmate’s ability to be perceived as gay, lesbian, bisexual, transgender, intersex, or gender nonconforming into account when deciding on proper placement

This section directly contradicts the Prison Rape Elimination Act, passed unanimously by Congress in 2009, which provides that transgender inmates may have input in their placement and housing if their safety is threatened.

The executive order also directs the Secretary of Housing and Urban Development to prepare and submit a policy to rescind the rule approved in 2016, “Equal Access in Accordance with an Individual’s Gender Identity in Community Planning and Development Programs,” and to submit a policy “protecting women seeking single-sex rape shelters.”

E.     Attacking LGBTQ+ Legal Precedent

The executive order specifically targets past successes in the LGBTQ+ rights movement. It claims that the Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. 644 (2020), which provided that sex discrimination under Title VII includes discrimination on the basis of sexual orientation or gender identity, is “legally untenable and has harmed women.”

The order directs the Attorney General to “immediately issue guidance to agencies to correct the misapplication [of Bostock] to sex-based distinctions in agency activities. It also directs the Attorney General to “issue guidance and assist agencies in protecting sex-based distinctions, which are explicitly permitted under Constitutional and statutory precedent.”

The executive order also directs federal agencies to rescind guidance documents that contradict it, including:

• “The White House Toolkit on Transgender Equality”
• Department of Education’s guidance documents, including: “U.S. Department of Education Toolkit: Creating Inclusive and Nondiscriminatory School Environments for LGBTQI+ Students”, “Supporting Intersex Students: A Resource for Students, Families, and Educators”, and “Supporting Transgender Youth in School” (June 2021)
• The Attorney General’s Memorandum on “Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972″
• The Equal Employment Opportunity Commission’s “Enforcement Guidance on Harassment in the Workplace”

F.     Seeking to Codify the Executive Order into Law

Section 6 of the order states that, within 30 days, the Assistant to the President for Legislative Affairs must present Trump with text of a proposed bill text to enshrine the definitions of the order into law.

 

What Does It Mean?

Trump’s executive order targeting the transgender community was written with the intent to erase the federal recognition of transgender, gender non-conforming, or intersex people.

However, it is important to remember that executive orders do not carry the same weight as laws. Logan Casey, the Director of Policy Research at the Movement Advancement Project, has emphasized that signed executive orders do not equate to immediate policy changes or laws.

“[President Trump] will issue executive orders and actions and other directives, but it will still take time before those things actually become law, if they ever actually go into effect,” said Casey. Rather, executive orders will direct federal agencies to begin changing their policies, with the order itself being easily challenged in court.

 

What Can I Do?

The federal government cannot control how people identify or an individual’s gender identity. It can, however, control the legal protections available for someone’s gender identity as well as the ability to have federal identity documents match someone’s gender presentation, such as passports, Social Security card, or government-issued IDs.

1.     Update Your Gender Marker on Your Real ID As Soon As Possible

Real ID is a federal law which affects how states issue driver’s licenses and ID cards. Beginning May 7, 2025, Pennsylvanians will need a Real ID or passport in order to board domestic flights or enter certain federal facilities. Individuals may use either a Real ID or passport to travel domestically in the future.

Because Real IDs are federal documents, they will also be subject to the policies that will stem from the executive order. However, it is unclear how exactly they will be affected. Real IDs are usually governed by an individual’s state when it comes to making updates or changes. But, like other federal documents, it will likely become difficult to update gender markers or to use an “X” gender marker in the future.

At this time, updating the gender marker on Pennsylvania Real IDs does not require any documentary evidence or proof. Applicants must go in-person to a PennDOT Driver License Center and fill out a form DL-32. Anyone who currently possesses a Real ID and intends to update their gender marker is strongly encouraged to do so while the requirement is still easy, even if they intend to legally change their name or their legal name change is in progress.

2.     Update Your Gender Marker with the Social Security Administration (SSA) As Soon As Possible

Updating your gender marker with the Social Security Administration does not reflect a change on your Social Security card. This change is only made to your records with the SSA.

At this time, updating the gender marker with SSA does not require any documentary evidence or proof. But, like other federal documents, it will likely become difficult to update the gender marker in the future. Anyone with a Social Security card who intends to update their gender marker is strongly encouraged to do so while still possible, even if they intend to legally change their name or their legal name change is in progress.

3.     Wait to Renew Your Passport Until Official Guidance Comes Out

The White House confirmed that the executive order and any following rules will not apply retroactively to existing U.S. passports. However, it will become very difficult for transgender, gender non-conforming, or intersex individuals to update their passport under the anticipated new guidelines.

At this time, anyone with a U.S. passport who intends to update their gender marker should wait until more official guidance is put out by the Department of State about the ability for them to make changes.

4.     Remember that State-Issued Documents and Laws Are Not Affected by Federal Policy

Rules to update names or gender markers on state-issued documents, like birth certificates, driver’s licenses or non-driver’s IDs, are set by the state and not the federal government. At this time, Pennsylvania and New Jersey have not indicated any upcoming changes to their rules for updating gender markers. However, concerned individuals may choose to update their documents now to ensure they have documents that correctly reflect their gender marker.

Laws governing legal name changes are also set by the state, rather than the federal government. Federal policy will not change the legal name change process in Pennsylvania or New Jersey. Those processes may only be changed by state law.

5.      Remember That an Executive Order Cannot Change the World Overnight

The federal government does not have the ability to decide someone’s gender identity.

While the executive order and the laws which will follow will make it difficult for transgender, gender non-conforming, and intersex people to have matching and correct identity documents, it will not eliminate the existence of transgender, gender non-conforming, and intersex people. The transgender community will still be here, regardless of the Trump administration’s ridiculous views and action.

The executive order does not impact the process for legal name changes, which are set by an individual’s state and not regulated by the federal government.

The executive order cannot change the state of gender-affirming care overnight, especially in Pennsylvania or New Jersey. It does not eliminate or undermine the validity of gender dysphoria, a valid medical diagnosis by medical providers under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).

6.     Seek Support If You Are in Distress

If you are a trans, gender non-conforming, or intersex person in distress or overwhelmed, it is important to ask for help and support. Please reach out to any of these resources:

The Trevor Project

     24/7 Hotline: 866-4-U-TREVOR (866-488-7386)

     Available via instant messaging at TrevorChat or via text at TrevorText (text START to 678678)

Trans Lifeline

     Peer-Support Crisis Hotline: 877-565-8860 (Available from 1 pm - 9 pm EST)

The LGBT National Hotline

     Confidential Hotline: (888) 843-4564 (Available M-F 1 pm to 9 pm EST and Saturdays 12 pm – 5 pm EST)

The LGBT National Youth Talkline

      Hotline serving youth through age 25: (800) 246-7743 (Available M-F 1 pm to 9pm EST and Saturdays 12 pm – 5 pm EST)