Photo: Matt McClain/The Washington Post via Getty Images
President Donald Trump’s flurry of executive orders, signed on his first day back in the White House, are riddled with illegal and unconstitutional demands. The order aimed at eradicating trans and gender-nonconforming people is no exception, and bears the added honor of spouting unscientific nonsense.
It is a bizarre, wide-ranging document, premised on a pseudoscientific definition of binary sex classification that would be impossible to implement to the letter in everyday life. The order would not stand up to scientific scrutiny or sound legal challenge, but it’s not designed to. It is, like most of Trump’s illegal executive orders, a political speech act intended to sow fear, give license to discrimination, and make life for marginalized communities materially harder.
The text is worth interrogating, however, insofar as it reveals the Trump administration’s brute-force approach to pushing trans people out of public life, couched in unambiguously pro-natalist rhetoric and the risible claim that it is “defending women.”
In the current preferred lexicon of anti-trans campaigners, long desperate to point to something immutable in science to ground their delusional rejection of trans existence, the executive order says, “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.” And that “‘Sex’ is not a synonym for and does not include the concept of ‘gender identity.’”
The order then defines “female” and “male” as follows:
“‘Female’ means a person belonging, at conception, to the sex that produces the large reproductive cell. … ‘Male’ means a person belonging, at conception, to the sex that produces the small reproductive cell.”
Observers were swift to note that by adding “at conception,” the order bundles in a notion of fetal personhood — a nod to the fact that attacks on gender nonconformity are part and parcel of a pro-natalist agenda, which requires attacks on all reproductive freedoms. It is no accident that the definitions of “female” and “male” are centered solely on reproductive function. The definition is also senseless; at conception, embryos are not sexually differentiated. And at conception, fetuses are also not producing reproductive cells, or gametes, large or small.
But the definition need not make scientific or practical sense to appease gender conformity fanatics. Since this language has now made its way into Trump’s executive order, it’s worth stressing the profound intellectual weakness of such a definition.
Anti-trans ideologues have glommed onto the language of gametes because their previous reliance on chromosomes — XX and XY — didn’t do the anti-trans rhetorical work they wanted. There were too many examples outside the chromosomal binary, like intersex variations, to contend with. Gametes seemed to do the trick for those transphobes who demand that sex be understood as immutable — something of the body that cannot be changed — and more strictly binary. Secondary sex characteristics like breasts, body hair, hormone levels, and shape of genitalia are not so clearly split between all those assigned female and male at birth. Crucially, these are also sex traits that trans people can indeed obtain.
Transphobes thus treat gametes, or reproductive cells, as some sort of definitional gotcha. It is not.
Firstly, not everyone produces reproductive cells. There are many cis women who do not produce large reproductive cells, or ova. When this is pointed out, the typical transphobe response is that these women are atypical, and that these women would produce ova were it not for some sort of dysfunction.
This makes it clear that the anti-trans claim to biological reality must appeal to a fictional biological world, in which all bodies develop in precisely predetermined ways — and those ways are designed toward reproduction. It’s an inherently conservative, indeed religious, view of bodily function and predestiny. In the actual world, though, this gamete definition would discount a good number of people the transphobes themselves would classify as “women” or “female.” Anti-trans bigots have always had a clear vision of who they would like to exclude from the category of womanhood, but this distinction was never based on observing which bodies do or do not produce large reproductive cells.
It’s telling that anti-trans campaigners must continue to find new language to cling to, to push an exclusionary binary, when science fails to draw the clean line between men and women that they wish it did.
It gets worse still, philosophically, for the transphobes. When they reduce the meaning of the word “woman” to “female” — defined by gametes — they must admit that, in the real world, they can’t be sure that they’re using it correctly. Under their terms, any time they use the word “woman,” they could wrongly be applying it to someone who does not produce ova — someone they claim, if we follow their definition, should be excluded from womanhood.
This definition of “woman” could also have only been available after Karl Ernst von Baer discovered mammalian ovum in 1827. Before that, according to anti-trans logic, it was only by guessing that the word “female” could have been correctly used. Since we can’t tell whether someone’s body makes large gametes, except in medical circumstances, recognizing someone as a “large reproductive cell producer” cannot be the definition of “woman.” This is simply not how science or language work. And for those of us who are not obsessed with the stupid game of finding an ideally trans-exclusionary, cis-inclusionary definition of “woman,” none of this is a problem at all. We can continue collectively using our words as makes sense to do so — like referring to trans women as women.
When it comes to the government, we can be sure that federal agencies will not, on receiving Trump’s executive order, initiate a thorough system of gamete checks. If implemented, the order will function like all discriminatory policy: People will be targeted if perceived to fall outside a standard, which is set by white, cis heteronormativity. The definition in the executive order could, however, give further license to the Republican drive toward the surveillance, harassment, and, in some cases, invasive sex-testing of those perceived to fall outside the norms of the gender binary — a perception heavily informed by racist conceptions of femininity, as we have seen in the arena of professional athletics, and vile efforts to exclude (almost always Black) cis women deemed too masculine.
In recent years, laws proposed by Republicans in Ohio, Kansas, New Jersey, among other U.S. states to ban trans girls from sports, opened the door to genital testing requirements on girls whose assigned sex at birth has been questioned. While such testing policies have for now been held at bay, their proposal alone speaks to the lengths — mandated sexual abuse — that these genital-obsessed gender fascists are willing to go to.
Trump’s executive order makes no specific calls for sex testing. Rather it treats its nonsensical, gamete-based definition as if it is an observable given of common sense reality — which, again, it is not.
What the order more explicitly demands is that federal agencies commit to the work of trans exclusion wherever possible. The order directs the secretaries of State and Homeland Security to prevent trans people from selecting their gender on official government documents such as visas and passports — the page on the State Department website where people could apply to make those changes has already been taken down. Since 2021, individuals have also been able to select “X” as a nonbinary gender maker on their passports; it is unclear what Trump’s order will mean for those passport holders. The intent, though, is clear: to make trans people feel afraid to move freely in the world.
The order also tasks the incoming attorney general and secretary of Homeland Security to bar trans people from government-funded single-sex facilities that align with their gender — so trans women would be moved into mens’ prisons and shelters, for example. This would put trans people in immediate and severe physical danger. Trump also directed the federal Bureau of Prisons to end funding for gender-affirming care for trans people in federal prisons, which could lead to trans people being forced to medically detransition. The order also states that federal funds will be removed from institutions found to “promote gender ideology” — a direct threat to schools and universities that rely on federal funds.
In a gesture to the order’s unconstitutionality, Trump also ordered the incoming attorney general to “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.” In Bostock, the Supreme Court rightly ruled that federal laws prohibiting sex-based discrimination applied to the prohibition of LGBTQ+ discrimination. Bostock made clear that discrimination on the basis of gender identity counted as sex-based discrimination. The executive order appears to recognize that its demands run counter to Bostock, as will no doubt arise in court challenges. Unfortunately, the far-right Supreme Court has already shown itself potentially willing to skirt around or even contradict its own Bostock ruling, for example, when it comes to siding with Republican attacks on trans health care.
It takes a huge amount of work, violence, and coercion to enforce gender conformity.
We can point out the inherent falsehood and nonsense at the executive order’s core — and it’s necessary to do so, given the purchase anti-trans voices maintain on establishment liberal discourse. The American Civil Liberties Union, Lambda Legal, and other LGBTQ+ advocacy groups have promised to challenge the executive order in the courts. But LGBTQ+ and reproductive freedoms — which, as the right understands, are indelibly connected — will not be defended by proving transphobes wrong. The point of the right’s extensive attacks on trans existence is to make trans people’s access to public life as unpleasant and difficult as possible. Our task, then, is to show unwavering solidarity with and material support for trans and gender-nonconforming adults and children. As the enormous Republican effort to legislate against and police trans people makes clear, it takes a huge amount of work, violence, and coercion to enforce gender conformity — it is our job to make that effort harder at every turn.
“There is no clear way to be ready for a world where those in power wish for your demise,” wrote the ACLU’s Chase Strangio, the first trans attorney to argue a case in the Supreme Court. “But we have no choice but to be ready to fight and we will — in court, in legislatures, in our local communities.”
