Transgender Rights Under the Second Trump Administration

Introduction

‘It will henceforth be the official policy of the United States government that there will only be two genders: male and female,’ Donald Trump declared in his inaugural address as the 47th President of the United States. To restrict the rights of transgender people, he issued several executive orders, notably two executive orders titled Protecting Children from Chemical and Surgical Mutilation (hereafter referred to as Order 1) and Keeping Men Out of Women’s Sports (hereafter referred to as Order 2). Although the constitutionality of these orders is being challenged in court, the future of transgender rights remains uncertain due to the unpredictability of Trump’s actions.  

Potential Grounds of Illegality

Order 1 requires federal agencies to revoke federal funding from medical institutions providing gender-affirming care to individuals under the age of 19. According to David Cole, the National Legal Director of the American Civil Liberties Union, courts would likely find such directives illegal. This is because the order (1) violates the Tenth Amendment by coercing states to comply using the ‘federal purse’ and thus interfering with state authority, (2) overrides Congress’ budgetary powers by denying federal funding specifically allocated to medical institutions for gender-affirming care, and (3) discriminates against transgender individuals contrary to the Fifth Amendment by denying them access to healthcare. Similarly, Order 2, which denies federal funding to educational institutions that permit transgender women to participate in women’s sports, deprives this group of due process protections, effectively forcing them to deny their sexual identity to compete. Both Order 1 and Order 2 highlight the constitutional issues raised by Trump’s executive orders.

The Future of Transgender Rights in the U.S.

Despite the current restrictions on transgender rights, the situation is not entirely bleak. On March 4, a federal judge ordered a nationwide block on Order 1, preventing its enforcement in the U.S. pending further legal review. Given the constitutional violations associated with Orders 1 and 2, there is a real possibility that the courts could invalidate these orders in ongoing lawsuits, which now number over 100. Nevertheless, due to the general hostility of the Trump administration towards transgender communities, the process of restoring transgender rights would be difficult.

Conclusion

Trump’s executive orders abruptly restricted certain fundamental rights of transgender people. Restoring the constitutional order that existed before Trump’s inauguration will be challenging, but the judiciary’s role as the protector of the Constitution offers some hope for achieving this goal.

References and Further Reading

Judge Orders Longer-term nationwide block on Trump orders on transgender youth health care (AP News)

Social justice groups sue to block Trump executive order restricting care for transgender children (CNN)

Trump takes action to ban transgender women from women’s sports (CNN)

Trump Targets Transgender Rights & Changes at SEC (Bloomberg Law)

U.S. Constitution - Fifth Amendment (Library of Congress)

U.S. Constitution - Tenth Amendment (Library of Congress)