President Trump Issues An Executive Order Recognizing Only Two Sexes

Anthony Pericolo is a CEO Visiting Fellow

On his first day in office, President Trump issued an executive order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” colloquially known as the “Two Sexes” executive order.

President Trump’s executive order aims to achieve four main objectives. First, the order says that there are only two biological sexes: male and female. Second, it prevents the executive branch from using gender or gender identity as a basis for categorization and identification. In other words, if the government considers a person’s sex, it must do so based on a person’s actual biological sex, and not merely on their gender identity. Third, the order freezes agency funding of programs that promote “gender ideology.” Fourth, it rescinds President Biden’s executive orders and agency guidance that promote “gender” as a concept distinct from biological sex.

President Trump outlined immediate actions that his cabinet secretaries must carry out in furtherance of his Two Sexes policy. For instance, he directed the Secretaries of State and Homeland Security and the Director of the Office of Personnel Management to limit the options for how to list a person’s sex on government-issued identifications to male and female. And Agencies are also required to ensure that intimate spaces, such as rape shelters and prisons, are segregated by biological sex, not gender identity.

Some of the executive order’s implications are not immediately clear. While it aims to halt executive branch actions that go well beyond those principles implicitly recognized by the Supreme Court’s Bostock v. Clayton County holding, it remains constrained by that holding. In short, Bostock’s textual interpretation of prohibited employment actions “because of sex” under Title VII is unchanged. In Bostock, the Supreme Court said that firing an individual who claimed to be of the opposite sex violated Title VII. Under Bostock’s interpretation of Title VII, a biological male who was fired because he wore a skirt in a workplace would have a sex-discrimination claim if a woman were allowed to wear the same skirt.

Another area possibly impacted by President Trump’s executive order is immigration. Aliens have previously been able to seek asylum by claiming that they are subject to future persecution as members of a particular social group, a term that has been broadly defined to include transgender individuals. It is hard to know how Article I judges will apply the executive order in these contexts, given the implicit guidance that persons claiming that they are not really their sex is not biologically supported.

Of course, some applications of President Trump’s executive order have already been challenged in court. A judge issued a temporary restraining order allowing medical transition treatments for transgender prisoners to continue and pausing the movement of male prisoners who identify as female into men’s federal prisons, finding that the transgender plaintiffs had shown a likelihood of irreparable harm. Other lawsuits challenge the executive order on procedural grounds, arguing that agency action in furtherance of the Two Sexes executive order is arbitrary and capricious under the Administrative Procedure Act.

President Trump may seek more permanent ways to implement his Two Sexes policy should it be limited by courts. To avoid challenges under the Administrative Procedure Act, President Trump can direct agencies to issue proposed rules for notice and comment. Already, President Trump has ordered the Assistant to the President for Legislative Affairs to write a bill to codify federal definitions of male and female.

Finally, the Two Sexes executive order is silent on school policy. President Trump will thus likely have executive branch follow-ups enforcing his Two Sexes policy, including further executive orders separating sports teams by sex, and future guidance from the Department of Education on locker room and bathroom policies.

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