America Changes Sides

What Trump's two-sexes order means for sports, misgendering, prison, gays, and more

“This is wrong.”

–President of the United States (2025)

Updates were added on Jan. 28-29, 2025, as noted below.

The United States government just declared war on its former ally.

Under President Joe Biden, it fought for the rights of avant-garde endocrinologists and boys who wanted to compete in girls’ sports. On January 20, 2025, President Donald Trump took office. He signed an executive order hours later declaring his administration stands for “the biological reality of sex.” This EO did what Biden avoided for years: it defined sex. It also counted the sexes (2). And it launched a war on gender ideology.

The EO is a set of marching orders to various federal agencies. It’s also a deft verbal assault with minimal jargon.

Page not found? It’s almost like gender identity never existed.

In the EO, Trump orders federal bureaucrats to say “sex” instead of “gender” and to shoot “gender ideology” on sight. He defines the term:

“‘Gender ideology’ replaces 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, and requiring all institutions of society to regard this false claim as true. Gender ideology includes the idea that there is a vast spectrum of genders that are disconnected from one’s sex.”

In this post I’ll break down what the EO means for American life and what’s changed already.

First, a word on the EO itself.

“Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (Washington, DC, 2025)

I’ve sometimes had a problematic thought when perusing gender-critical media:

The women think this is about lies and the men think it’s about science.

For example, the litigation teams defending state bans on child gender medicine emphasize studies – they seem mostly to be led by men. Feminist orgs like WoLF then file amicus briefs exposing the plaintiffs’ deceptive wordplay. Esteemed male sexologists prattle on about their commitment to evidence; women in the peanut gallery guffaw at their contradictions.

As a woman who believes calling out the lies, not the scientific inadequacy, will end this, I felt pleased to see a woman, May Mailman, identified as lead drafter of the two-sexes EO. A lawyer by trade, Mailman is Deputy Assistant to the President and Senior Policy Strategist. She previously served as director of the Independent Women’s Law Center.

The EO represents a triumph of candor over science. You won’t find the word “dimorphic” here. Its definitions of sex, male, and female have a light touch. They refer to gamete production and that’s all the biology they need. Health and Human Services will follow up with “clear guidance expanding on the sex-based definitions[.]” In other words, the nerds at HHS will taxonomize each disorder of sex development.

Instead of scientific or sociological minutiae, the EO drops truth bombs like this:

“Gender ideology is internally inconsistent, in that it diminishes sex as an identifiable or useful category but nevertheless maintains that it is possible for a person to be born in the wrong sexed body.”

Men in Women’s Prisons

Section 4(a) of the EO:

“The Attorney General and Secretary of Homeland Security shall ensure that males are not detained in women’s prisons or housed in women’s [immigration] detention centers …”

Federal Facilities

Men are in women’s federal prisons because of regulations that the Justice Department issued in 2012 under the Prison Rape Elimination Act (2003). These regs imposed a modified self-ID regime on the penal system:

“the [Bureau of Prisons] shall consider on a case-by-case basis whether a placement [in a men’s or women’s prison] would ensure the inmate’s health and safety, and whether the placement would present management or security problems.”

There’s no requirement that the men undergo genital surgery or even take hormones. Indeed, the vast majority are intact. (My deep dive into PREA.)

Inmates can’t sue under PREA, which means the BOP could get away with simply rejecting every man’s request to serve his time in the women’s ward. But there are problems with that approach. The deep state might not play along. The rotten regs would still be on the books when the next president takes over. And “transgender” inmates point to the PREA regs when they sue BOP under the Constitution’s 8th Amendment prohibition on “cruel and unusual punishment.”

So the EO wisely directs the AG to amend the PREA regs “as necessary.”

That process will likely take a few years. But BOP is already taking action. According to the Daily Mail, BOP notified men in women’s prisons of their imminent transfer the day after Trump signed the EO.

The ACLU could find a plaintiff and sue. But so far it hasn’t. Nor have any other social justice lawyers, as far as I can tell, even though they’ve traditionally been able to strike very quickly (including on immigration this past week).

This is not an issue that national orgs have highlighted in the past. I can guess why. Not only are the men all criminals, but the PREA regulations are highly indulgent. Why draw attention to them? I think most Americans believe that men in women’s prisons have all been castrated. If the ACLU pushed the issue into the spotlight, the truth might come out.

State Facilities

PREA applies to states indirectly by conditioning funds on compliance. No doubt Trump will let them slide on trans-exclusivity. The real problem, in many states, is laws their own legislatures passed since the late 2010s.

Trump’s DOJ can sue the state systems for violating female inmates’ civil rights. It would face obstacles in arguing that trans-inclusive policies on their own are illegal (for one thing, those barbaric PREA regs will remain on the books for the next few years). But prison systems are notorious for turning a blind eye to abuse and degradation that women face as a result of trans-inclusive policies. That negligence is illegal. DOJ can also sue to vindicate the women’s right to privacy – the type of lawsuit Rhonda Fleming brought. (Since that story was published, Fleming lost the trial. The judge has now asked the parties whether the EO renders his decision moot because it removes men from women’s prisons. If so, he wants to vacate his ruling, which would mean no appeal.)

Gender Medicine for Prisoners

Section 4(c) of the EO:

“The Attorney General shall ensure that the Bureau of Prisons revises its policies concerning medical care to be consistent with this order, and shall ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”

The ACLU has sued prisons in the past for refusing inmates’ demands for hormones and surgeries. The theory is that these cosmetic treatments are “medically necessary,” so denying them is unconstitutional “cruel and unusual punishment.”

The ACLU calls expert witnesses who cite the authority of WPATH. In the past, WPATH’s credibility was unimpeachable. Who could claim more expertise on gender medicine than WPATH?

Last year, the Alabama Attorney General exposed that WPATH’s process for drafting its Standard of Care v. 8 (2022) was corrupt. Drafters acknowledged they used the term “medically necessary” to score insurance coverage.

Now if the ACLU cites WPATH in prison litigation, its adversary will follow Alabama’s playbook and subpoena even more internal documents from WPATH. (The ones we’ve seen pertain to SOC8’s chapters on minors.)

Federal prisons are held to a strict and stingy healthcare budget. Tragic stories abound. Eliminating gender medicine from the system will save the patients its ravages and restore funding to real medicine.

Update Jan. 28, 2025: GLAD and NCLR sued Trump and others for transferring their trans-identified male client to a women’s prison and halting his estrogen prescription. This is the B team; ACLU is still quiet. The complaint refers to trans medical protocols without naming “WPATH” — an absurd evasion that won’t protect WPATH from subpoenas.

Gender Medicine for Everyone Else

Otherwise the EO is silent as to gender medicine.

The EO’s hostility to gender ideology might embolden health insurers to drop or restrict coverage for gender medicine. Contrary to popular belief, Obamacare doesn’t require them to pay for it. That’s a myth based on the dubious legal theory that the statute’s ban on sex discrimination applied. Biden’s HHS regs to that effect have been enjoined.

I’d like to see DOJ investigate pharma’s role in promoting hormones and blockers, and the Federal Trade Commission investigate gender doctors who deceive patients. They could do this. But the EO doesn’t make them.

Update Jan. 28, 2025: Trump just signed an EO dealing with child gender medicine. It bars funding to all entities that engage in the practice and directs investigations by DOJ into consumer fraud and other issues.

Bathrooms and Pronouns at Work

This one turned out to be surprisingly complicated.

Section 5 of the EO (emphasis added):

“The Attorney General shall issue guidance to ensure the freedom to express the binary nature of sex and the right to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964. In accordance with that guidance, the Attorney General, the Secretary of Labor, the General Counsel and Chair of the Equal Employment Opportunity Commission, and each other agency head with enforcement responsibilities under the Civil Rights Act shall prioritize investigations and litigation to enforce the rights and freedoms identified.”

Free speech is protected by the First Amendment of the US Constitution. If you work in government, your boss has limited ability to fire you for how you express yourself. Also, even if you work in the private sector, the government can’t impose rules on your workplace that interfere with your First Amendment rights.

Sex discrimination and harassment at work is banned by Title VII of the Civil Rights Act.

Title VII doesn’t mention “gender identity.” But in 2020, the Supreme Court ruled in Bostock v. Clayton County (2020) that it bars employers from firing workers for “being transgender.” The ruling didn’t address bathrooms or pronouns. As to bathrooms, it literally said it wasn’t going there. And yet …

The EEOC & Private Employers

The agency that enforces Title VII against private employers is the Equal Employment and Opportunity Commission (EEOC).

Last year, the EEOC interpreted Title VII to impose a gender regime: bathroom access based on gender identity and mandatory preferred pronouns. The authority for this reading? Bostock. EEOC codified its interpretation in regulations that have been challenged in court.

Trump appointed Andrea Lucas to chair the EEOC. She’s on board with the EO. But three of the agency’s five commissioners are Democrats who back the Bostock-inspired regs. They already issued a statement claiming the EO is out of line with the law. Republicans won’t dominate for the next two years.

Seyfarth Shaw, a law firm serving employers, predicts:

“the EEOC will have difficulty formally adjusting their investigation and litigation priorities in this area. However, as Acting Chair, Lucas has numerous tools at her disposal to influence the EEOC’s messaging and action in this area.”

Another firm, Jackson Lewis, advises employers

“to carefully consider policies and practices with respect to, for example: Restroom access … Misgendering … This is a developing situation, and we are continuing to analyze and understand the implications for employers.”

Biglaw firm Paul Weiss also threw up its hands about “compliance with anti-discrimination laws amidst a shifting legal landscape.”

Unlike some other federal agencies, EEOC still has gender webpages up, like this one that advises intentional misgendering can create a “hostile work environment.”

The multistate challenge to EEOC’s gender regs is led by Tennessee. Oral argument was scheduled for January 27 on its motion for a preliminary injunction. Two days after the EO dropped, the Justice Department asked the court to cancel the imminent hearing. It said the “position of the United States is reflected in the [EO], notwithstanding any prior position taken by the [EEOC] in this case.” But it didn’t say the US would stop defending the suit or that it planned to rescind the regs. Judge Charles E. Atchley, Jr., noted the ambiguity. He canceled the hearing “for the time being” – and directed Tennessee to re-file its motion to address the “changed legal landscape.”

Note Jan. 28, 2025: that paragraph previously said EEOC filed the motion. I’ve edited it to reflect that DOJ did.

The EO directs EEOC to “promptly” take down its guidance related to the gender regs. That’s the document EEOC cited in its motion. But the regs themselves need to be rescinded through a formal (long) rulemaking process. (Not very important, but as of this writing, the guidance is still online.) The EO doesn’t explicitly say that, and EEOC didn’t address that point in its motion. Hopefully EEOC will stop defending the regs and rescind them. But right now we can’t be 100% certain it will.

It is possible for the EEOC to thumb its nose at the president. In 2017, it prosecuted a gay-rights case that the Trump administration wanted it to drop. (I’ll discuss gay stuff below.) The Justice Department showed up at the appeal and argued against the EEOC. The judges found this US v. US showdown “awkward.”

Justice Department & State/Local Government Employers

The Justice Department prosecutes state and local governments for violating their employees’ rights under Title VII and other laws. This agency can be counted on to carry out the EO. Trump has nominated Pam Bondi to run it as Attorney General and Harmeet Dhillon to lead its Civil Rights Division. Dhillon is a warrior – she had her firm represent Chloe Cole (the first major detrans lawsuit), female prisoners suing California for siccing male bunkmates on them, a Rhode Island mother demanding to see her kids’ school’s gender curriculum …

Pro-Trans State Laws

Many states ban discrimination by “gender identity.” Regulations interpret these statutes to grant bathroom and censorship rights to trans workers.

If challenged in court, those regs should fail because they’re outside the scope of the statute (gender identity discrimination doesn’t mean treating someone as their sex) and violate free speech rights. And if they conflict with federal law protecting sex then the federal law trumps. But, again, EEOC may not be joining the war against gender just yet.

This is confusing. Employers in these states are in a sticky situation. They could be sued no matter how they configure their bathrooms. I’d err on the side of respecting sex over gender because of the gender regs’ weaknesses. And the EEOC will start fighting for this side eventually.

Update Jan. 28, 2025: Trump has fired two EEOC Democratic commissioners. According to the New York Times, it’s unclear whether he has authority to do that and it will leave the agency without a quorum for some official acts.

School Sports & Bathrooms

The EO doesn’t address school sports, bathrooms or locker rooms.

Biden’s Title IX rewrite was recently vacated nationwide. I believe it’s dead and can’t be revived. And it never addressed sports. So Title IX allows single-sex bathrooms and locker rooms, and it requires schools to fund girls’ athletics the same as it funds boys’.

When you see boys dunking on girls in high school basketball games, thank state law or league rules, not the federal government. Same for unisex bathrooms. The question is whether Ed will clamp down on the states, leagues, and schools.

Trump’s EO didn’t explicitly direct it to. But Section 2(f) of the EO directs the Attorney General to “issue guidance and assist agencies in protecting sex-based distinctions[.]” That, in turn, could support Ed in drafting new regulations under Title IX to protect girls’ sports. Ed could also mandate single-sex spaces. Up till now, the law has merely allowed them (except for the 15 minutes when Biden’s rewrite was in effect).

Elsewhere Education officials have sounded a note of local control. Since suing schools inevitably draws resources away from kids, there may be a hope that schools will get in line without a brawl.

Update Jan. 29, 2025: Ed is investigating Denver Public Schools for replacing a girls’ bathroom with an “all genders” bathroom — and leaving the nearby boys’ bathroom alone.

School Curriculum & Environment

Th EO directs the government to stop indoctrinating Americans. Section 3(e):

“Agencies shall remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages.”

It tags for deletion several webpages and guidance documents aimed at schools, like “Toolkit: Creating Inclusive and Nondiscriminatory School Environments for LGBTQI+ Students.” By Friday, “LGBTQ” Ed webpages were displaying 404 codes.

A different EO directs agencies to dismantle DEI (“illegal and immoral discrimination programs”). It’s associated with race in public discourse. But the administration is also applying it to gender ideology. From the Deputy General Counsel at Ed:

The anti-DEI team hired a transphobe for diversity

Between the two EOs, it’s safe to say the federal government is out of the gender unicorn business.

Pronouns at School

Just as gender ideologues argue “misgendering” creates a “hostile work environment,” they also argue it is sex-based “harassment” at school. But in fact misgendering at a public school should be protected by the First Amendment. And the EO’s workplace section shows the administration prioritizes free speech rights.

In light of the EO, the law firm Miller Nash warns school officials:

“Education entities … need to be mindful of First Amendment rights and carefully evaluate the intersection between protected expression and bullying/harassment.”

Rape Shelters

The EO directs rescission of an Obama-era rule that designated emergency shelter by gender identity – in other words, it let men into rape shelters. Unfortunately, the rulemaking process may take a few years.

Section 4(b):

“The Secretary of Housing and Urban Development shall prepare and submit for notice and comment rulemaking a policy to rescind the final rule entitled ‘Equal Access in Accordance with an Individual’s Gender Identity in Community Planning and Development Programs’ of September 21, 2016, 81 FR 64763, and shall submit for public comment a policy protecting women seeking single-sex rape shelters.”

Update Jan. 28, 2025: Listen to this account by a woman who lived in a homeless shelter for “women” that also housed trans-identified men.

Defund Gender

The EO defunds gender. Section 3(e):

“Agencies shall take all necessary steps, as permitted by law, to end the Federal funding of gender ideology.”

Federal funding is everywhere. Nonprofits, schools, health clinics, scientific research. Contracts with private businesses. And gender ideology is defined broadly (quoted above). It could include any policy that recognizes preferred pronouns or entertains fanciful ideas of a sex spectrum.

Cutting existing grants or refusing to spend funds allocated by Congress would lead the administration into a thicket of regulation, as the law firm Feldesman explains. But when it comes to renewing grants or funding new projects, it appears the government doesn’t have to pay for stuff it hates. And it can attach strings related to gender. I’m curious to see the contract language that agencies come up with — the EO’s definition of gender ideology isn’t optimized for that format.

Science reports that young researchers are afraid they won’t be able to build careers in the field of gender. It measures the scope of impact:

“There are 412 [National Institute of Health] grants worth $235 million whose abstracts contain the terms ‘transgender,’ ‘gender minority, or ‘nonbinary.’ ... Many projects focus on care for transgender teens[.]”

How many of those studies rigorously examine the medical harms caused by puberty blockers, cross-sex hormones, and cosmetic surgery? Science doesn’t say. I’m going to assume (a) the answer is “few or none” and (b) the Administration won’t view those studies as promoting gender ideology.

The Substance Abuse and Mental Health Services Administration doled out $360 million in grants to programs that used the term “transgender” in their application, according to the Daily Caller. I clicked a few applications at random, and these programs aren’t actually about identity. They just mention “transgender” as a demographic category. Now they’ll leave that data out.

Over the last several years questions about “gender identity” on intake forms have proliferated. If the data was sought for the purpose of applying for federal funds then they’re about to vanish.

In fact, a lot of gender diversity bathroom signs and ugly flags might soon vanish. Jeopardizing contracts with the federal government isn’t worth it.

In 2015, HHS sprouted a “Sexual and Gender Minority Research Office” (SGRMO). The psychiatrist Kris Kaliebe examined SGRMO files in an expert witness report last year; I covered his work in an X thread. At the end I linked to “LGBT” studies that NIH funded to show they hadn’t covered “gay” or “lesbian” issues since 2011. The link is now broken.

The Los Angeles Times asked Erwin Chemerinsky, dean of UC Berkeley Law School, what the EO’s funding threat meant for schools and colleges:

“At this point, it is hard to know what [Trump’s order] will mean in California. … The impact on states with different policies is unclear at this point.”

Identity Documents

Section 3(d) requires agencies to “implement changes to require that government-issued identification documents … accurately reflect the holder’s sex[.]” Details are left to the agencies. The EO doesn’t apply to states, so drivers’ licenses may continue to reflect gender identities instead of sex.

Abortion

Advocates for abortion rights are nervous because the EO refers to conception:

“‘Female’ means a person belonging, at conception, to the sex that produces the large reproductive cell.”

Anti-abortion advocates argue embryos and zygotes are “people” and therefore abortion is murder. This definition implies they’re right about part 1 of that sentence.

The EO doesn’t have any bearing on abortion policy but its language might worm its way into an anti-abortion argument in the future. It’s discomfiting to abortion-rights advocates. Still: IVF is very popular so the argument that destroying embryos is murder can’t go anywhere.

I’d suggest anti-gender activists embrace the EO’s definition of sex because it’s good. Sex is fixed at conception. “Birth” has nothing to do with sex and invoking it would confuse people who are used to hearing the gender-ideologue term “sex assigned at birth.”

Gays

The EO says nothing about gay people, sexual orientation, or sex/gender nonconformity. It doesn’t deploy the term “LGBT.” Although some definitions of “gender ideology” sweep in gay marriage, the EO’s does not.

But Section 7(c) targets specific documents for destruction that have “LGBTQ” in the title. Will we miss them when we’re gone?

First, the EO allows agencies to rescind only “parts” of the documents. They can literally cut out the T with scissors.

But more important, I don’t think these materials are helpful for gays.

I pulled a file that’s still available online at UCLA archives, “Confronting LGBTQI+ Harassment in Schools.” It provides examples of anti-gay bullying that students should report to Ed and Justice: a girl who’s barred from attending a dance with her girlfriend; a boy shoved against a locker and called a slur while teachers look the other way.

These are real problems that I’d like the federal government to tackle. But get real. A Republican administration isn’t going to fight for a teenage lesbian’s right to make teachers feel uncomfortable. More likely priorities for its civil rights enforcement: free speech, free exercise of religion, confronting anti-Semitism, parents’ rights, rooting out racial preferences, due process for students accused of sexual assault, and sex-based rights when they clash with gender ideology.

If that LGBTQ flyer were still in circulation, it would just be giving gay kids false hope.

Some of the regs targeted by the EO bar “sexual orientation” discrimination in addition to gender identity. But we might not lose sexual orientation. Again, the EO allows agencies to leave it in. And I’ve noticed that in at least a few of the legal challenges to Biden’s rewrites of civil rights regs, plaintiffs left sexual orientation alone. This might reflect a general Republican acquiescence to gayness or an acknowledgment that Biden was on solid legal ground when he banned anti-gay discrimination.

That’s because Bostock is a stronger precedent when it comes to gay people. We aren’t seeking any rights that the decision explicitly excludes. There are also other appeals court rulings protecting gay people under the rubric of sex discrimination law, on the theory that homosexuality violates sex stereotypes.

The Biden administration encouraged gay teenagers and gender-nonconforming children to believe they could change sex. It fought in court for the rights of gender doctors to arrest their development and hook them on steroids. This was a world-historic assault on our people. And many of those conducting the assault believed they were helping “the LGBT community.”

I look forward to four years of benign neglect by the Trump administration as it carpet bombs our enemies.

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Related: My analysis of the EO’s definition of gender identity and what it means for trans litigation.