On his inauguration day, President Donald Trump enacted a series of executive orders, one of which declared that the United States will officially recognize only “two sexes: male and female.” This decision could lead to significant consequences for transgender and nonbinary individuals, affecting both their legal standing and mental well-being.
The order criticizes “ideologues” for allegedly ignoring “the biological reality of sex” and dismisses the concept of gender identity, labeling it as “disconnected from biological reality.” It mandates that all federal agencies and employees refer to “sex” rather than “gender” in relevant policies and documentation, and it asserts that government-issued identification will “accurately reflect the holder’s sex.”
It’s important to note that sex and gender are not synonymous. Typically, sex pertains to biological characteristics, while gender relates to a person’s social identity, which may not align with the sex assigned at birth.
“This executive order clearly aims to erase the legal existence of transgender individuals,” states Harper Seldin, a senior staff attorney with the ACLU’s LGBTQ and HIV Project.
As of now, the White House has not issued any comments regarding this matter.
The implementation of the order has been swift. Secretary of State Marco Rubio circulated an internal memo instructing Department of State employees to halt all applications for gender marker updates and to suspend requests for the “X” gender marker on passports, which had been introduced in 2022 for nonbinary individuals, as reported by The Guardian.
Simone Chriss, an attorney and Director of the Transgender Rights Initiative at Southern Legal Counsel in Florida, shared that she has already spoken to clients who have encountered these changes. “One client received a phone call stating that their passport application for a gender marker change had been put on hold. Another was informed in person at a passport acceptance facility that their application wouldn’t be processed,” says Chriss. She anticipates that legal challenges will arise in response to this order.
Florida is one of four states that have prohibited gender marker updates on state IDs, according to the Movement Advancement Project. While Trump’s executive order does not dictate state-level actions regarding local identification amendments, it has heightened concerns among the transgender community. “The intent of this executive order is to instill fear and to compel individuals to reduce their visibility,” Seldin explains.
Here’s how Trump’s executive order affects gender-related policies.
Impact on Federal Identification Documents
The executive order effectively negates the legal recognition of transgender and nonbinary individuals, preventing them from updating their gender on federal documents such as passports, visas, and Global Entry cards.
TIME reached out to the Consular Affairs office for insights on new policies regarding gender marker changes on federal documents. A spokesperson from the State Department directed inquiries to the White House, which has yet to respond as of the publication of this article.
Under the Biden Administration, citizens were allowed to amend their gender markers to align with their gender identity through a more affirming self-attestation process, which did not require medical documentation. In 2022, a new “X” gender marker was introduced for nonbinary, intersex, or gender nonconforming individuals.
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Individuals who have already updated their federal documents retain valid identification, even with the changes made. “The White House has stated that this is not retroactive,” notes Chriss. However, the Department of State will no longer provide new passports with the “X” marker.
Experts are concerned about complications that may arise during passport renewals, which occur every ten years for individuals aged 16 and older. “Many individuals have a decade before they need to consider this, but when it comes time for renewal, it appears they will revert to the sex assigned at birth,” explains Chriss. The specifics of how such a policy would be enforced remain unclear, particularly if birth certificates or state IDs have already been modified.
Impact on State Identification Documents
The executive order does not alter state-level policies or most state identification documents. “For states that have already enacted these bans, the executive order offers additional validation for their policies, but it does not require any state to implement a law against gender marker changes,” says Chriss.
Nevertheless, there are concerns about how this policy may affect the REAL ID Act, which demands stricter criteria for issuing identification compared to a regular license and requires additional documents for verification. Beginning May 7, residents will need a REAL ID to travel domestically or access certain federal facilities. “If you have a driver’s license that accurately reflects your gender marker but need to comply with the REAL ID Act, you may be required to present your birth certificate or passport—could this create complications? It will depend on each state’s regulations,” Chriss notes.
Transgender and nonbinary individuals in states that restrict gender marker changes have already been navigating the challenges of having mismatched documents. Seldin cautions that issues may arise when two forms of identification are necessary, such as during loan or job applications, or when seeking housing.
For some, having inconsistent documents can pose safety threats by potentially outing them. “This puts the discretion into the hands of the individual reviewing your documents, determining whether they will accept or understand,” warns Imara Jones, an American political journalist and CEO of the independent news organization TransLash Media. “It effectively grants people the authority to discriminate, marking individuals as ‘Other.’”
A Broader Signal
Although transgender individuals represent less than 1% of the adult population in the U.S., according to a study by the Kaiser Family Foundation and The Washington Post, they have become a focal point for state legislatures, facing bathroom bans and other legislative actions, as well as challenges in the Supreme Court regarding the future of gender-affirming care. Shortly after being elected as the first openly transgender member of Congress in November, Democratic Rep. Sarah McBride from Delaware was prohibited from using the bathroom that aligns with her gender identity due to a rule change initiated by her Republican colleague, Rep. Nancy Mace from South Carolina.
Research published in Nature Human Behavior indicates that anti-trans laws have led to a significant increase in suicide attempts among transgender and nonbinary youth aged 13 to 17, with rates rising between 7% to 72%. The Trevor Project, which focuses on suicide prevention for LGBTQ+ youth, reported a 33% surge in crisis hotline calls on Inauguration Day compared to the weeks preceding Trump’s swearing-in.
Read More: Anti-Trans Laws Linked to Increase in Trans and Nonbinary Youth Suicide Attempts
Jones emphasizes that Trump’s executive order will lead to greater exclusion; for example, he has overturned a Biden-era regulation that permitted transgender individuals to serve in the military, and it has been reported that the President is anticipated to sign an executive order explicitly prohibiting transgender individuals from military service.
“Executive orders and legislation are not solely about the practical aspects of enforcement; they also send a broader message regarding who is deemed acceptable in society,” Jones explains. “These executive orders imply that, in this country, transgender individuals are considered personae non gratae. This effectively empowers individuals in authority to exercise their discretion against transgender individuals if they choose to do so.”
