While running for president, Donald Trump pledged to fight the Biden administration’s efforts to expand protections for transgender students. On day one of his second term in office, he got to work fulfilling that promise.
In an executive order, which is part of a broader effort to restrict the rights of transgender people, Trump declared that there are only two sexes and banned the federal funding of “gender ideology.” His supporters hailed the move as a return to common sense, while LGBTQ+ advocates saw it as an attack seeking to erase the existence of trans people.
For colleges and universities, the order raises more questions than it answers, and its immediate implications are unclear. As with other executive orders, it includes many provisions that require the Education Department to take action and issue guidance about how colleges should comply. But depending on how the department responds, the order could complicate institutions’ efforts to accommodate transgender students and eventually change how the federal government enforces Title IX of the Education Amendments of 1972.
Susan Friedfel, a higher education attorney at Jackson Lewis, a New York City law firm that works with colleges and other employers, said more information is needed from the Education Department to determine how the order will affect higher ed institutions, especially since other federal and state laws protect LGBTQ+ students.
“We have a lot of questions,” she said. “It’s challenging because we have conflicting laws that apply to the same space.”
In the meantime, she encouraged colleges to revisit their Title IX policies to ensure they are in compliance with the 2020 regulations put in place by the first Trump administration and to think about how best to accommodate everybody.
The order, titled “Defending Women From Gender Ideology Extremism And Restoring Biological Truth to the Federal Government,” defines “sex,” “male” and “female,” among other terms, and orders federal agencies to use those definitions when “interpreting or applying statutes, regulations, or guidance and in all other official agency business, documents, and communications.”
The order is likely to face legal challenges, said Cathryn Oakley, senior director of legal policy at the Human Rights Campaign, who argues that it’s unlawful.
“It is important that people not give this executive order more credence than it deserves,” she said.
Other LGBTQ+ advocates echoed Oakley, emphasizing that executive orders don’t create or change laws.
“Discrimination based on sex, including discrimination against transgender, nonbinary, and intersex people, remains illegal, and it cannot be legalized through this executive order,” Fatima Goss Graves, president and CEO of the National Women’s Law Center, said in a statement.
But Republican lawmakers, conservative legal organizations and other anti-trans advocates applauded Trump’s order, saying it would protect women and girls from discrimination and ground federal law in “biological fact.”
“Blatant and deliberate attempts to redefine our sons’ and daughters’ identities by questioning biology itself has done significant harm to our children and society,” said Representative Tim Walberg, the Michigan Republican who chairs the House education committee. “[The] action by the Trump administration acknowledges the biological differences between men and women. In doing so, it is protecting women from discrimination and securing the progress women have made over the decades.”
What’s in the Order
In addition to defining “sex” and other terms, the order outlines a plan to combat “gender ideology,” which the Trump administration defines as replacing “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.”
Federal officials were told to remove any internal or external documents that “inculcate gender ideology” and take “any necessary steps to end the federal funding of gender ideology.” Additionally, agencies will now only use the term “sex” instead of “gender” in all applicable federal policies and documents, according to the order. The Biden administration gave people the option on passport applications to mark their gender as X rather than choose male or female. That option is now being eliminated.
On Thursday, Secretary of State Marco Rubio said that the State Department wouldn’t process any passport applications seeking to change the applicant’s gender from male to female or requesting the X option, The Guardian reported.
Agencies are required to give an update on their efforts to implement the order in 120 days.
The Trump administration also directed the attorney general to correct the Biden administration’s “misapplication” of the Supreme Court’s 2020 decision in Bostock v. Clayton County, which said that LGBTQ+ individuals were protected from discrimination in the workplace on the basis of sexual orientation or gender identity under Title VII of the Civil Rights Act of 1964.
The first Trump administration said that Bostock didn’t apply to Title IX, which bars sex-based discrimination in education settings. But the Biden administration reversed that guidance in June 2021.
The Bostock decision was key to the Biden administration’s new Title IX regulations, which clarified that the law also prohibits discrimination based on sexual orientation or gender identity. A federal judge ruled earlier this month that the new Title IX rule was unlawful and wiped the regulations off the books.
Trump’s executive order also requires the education secretary to rescind a number of guidance documents related to the now-vacated Title IX regulations, as well as resources for supporting LGBTQ+ students. That includes the Education Department’s June 2021 Dear Colleague letter that said Title IX protects LGBTQ+ students from discrimination based on their sexual orientation or gender identity.
In addition, the Trump administration is rescinding a back-to-school message for transgender students from the Departments of Education, Justice and Health and Human Services that provided resources for students who experience bullying or discrimination.
‘Nothing Radical’
Kim Hermann, the executive director of the Southeastern Legal Foundation, a conservative legal organization that sued the Biden administration over the Title IX regulations, said Trump’s order immediately restores the privacy and physical safety rights of women, so colleges that don’t comply could face federal civil rights investigations or lawsuits.
“There’s nothing radical about this executive order,” she said. “All it does is solidify Congress’s original intent when they passed the laws … Our girls and our women on college campuses are sick of their rights being eroded.”
Friedfel said the current Trump administration will likely investigate complaints from cisgender students who are uncomfortable sharing spaces with transgender students.
“That doesn’t mean that they necessarily have to do anything radically different, but recognize that there’s that risk there,” she said.
Oakley said that guidance from the department is necessary for universities to understand what’s expected of them and how the Office for Civil Rights will enforce Title IX. She doesn’t expect OCR to take discrimination against LGBTQ+ faculty, staff and students seriously.
“It’s also going to be very difficult to understand how to be in compliance when the folks who are enforcing the law are not respecting the actual case law,” she said. “So it is going to create a tremendous amount of confusion.”
