Trump's "two sexes" executive order mainly affects prisons and passports - sure to be legally challenged - Biden's admin was forced to add the X passport option in 2021 at end of 6 year legal case
Trump’s “two sexes” executive order will not be used by justices, or legislators or the medical profession. The judiciary will continue to interpret legislation about sex as also applicable to trans people.
We will see this is sure to be challenged. But if it stands, the main effects are:
[SURE TO BE CHALLENGED] transgender prisoners will have to move to the jail of their birth gender
[SURE TO BE CHALLENGED] X for neither male or female which was added to passports in 2022 will be removed
The only reason there is an X option on passports is that the US government was legally forced to add it at a cost they estimated in advance as $15 million and 24 months of work.
Trump's attempt to remove that checkbox is sure to be challenged.
As the BBC reporter Gary O’Donahue put it, Trump cannot wish away the Constitution with a stroke of a pen.
Gary O' Donahue (BBC Reporter): He cannot wish away the Constitution with a stroke of a pen. So some of the things he is trying to do will be challenged in the courts. Other things may be easier, others may come to nothing. So it is a real mishmash.
So what will happen when it’s challenged? We will see that the Supreme Court is likely to decide pro trans interpretations of sex.
There is no possibility of being prosecuted or jailed for being LGBT. By being so extreme in the executive orders you can be sure there will be high profile Supreme Court cases under this admin that will boost trans rights.
Contents
First transgender passport in 2021 to Dana Zzyym after 6 years legal case
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First transgender passport in 2021 to Dana Zzyym after 6 years legal case
You can select X for no gender on your passport.
. Selecting your Gender Marker
That's a policy that's only been in place since 2022 under Biden Gender-neutral X passports will be available in April
The first transgneder passport was issued in 2021, in the lawsuit Zzyym v. Blinken (formerly Zzyym v. Pompeo, Zzyym v. Tillerson, and Zzyym v. Kerry).
It took Dana Zzym 6 years But they won the case and forced the government to add an X to the passport. https://en.wikipedia.org/wiki/Dana_Zzyym The same may well happen again.
It took to 2022 to have it fully integrated.
At the time of the decision, the government said:
QUOTE To fully integrate the change into its software systems would “take approximately 24 months and cost $11 million,”
. Federal court orders State Department to issue the country’s first nonbinary passport
But they had to do it.
This is all sure to get legal challenges and go up to the Supreme Court. I wouldn't be surprised if the current Supreme Court overrides it and says the change is illegal given that they are majority pro trans probably 5 : 4 or 6 : 3 from past decisions of the conservative justices and assuming the one new liberal justice is pro trans - by pro trans I mean in favour of reading the word "sex" as inclusive of trans..
Republican supreme court justices were selected for past decisions on Roe - by past decisions on LGBT they are likely to make pro LGBT decisions by a 5 : 4 or 6 : 3 majority
What happened is that the Republicans for many years selected Supreme Court justicesbased on their past record on that specific issue. So they were just deciding based on their past record and for legal not political reasons.
They were NOT chosen for their past record on LGBT and on LGBT issues the court seems to have roughly the same balance as before. A slight majority towards pro LGBT favourable interpretations of the law.
They haven't yet decided any significant LGBT cases recently but the figures suggest they are likely to be either 5 : 4 or 6 : 3 pro LGBT if they held a similar case today to one that in the past was decided 6 : 3 pro LGBT.
Their record on trans rights is sparse, only one case in 2020 decided 6 : 3 in favour of trans. That time the conservative justices Roberts, and Gorsuch who are still in the Supreme Court voted for the trans favouring judgement and were joined by Sotomayor and Kagan of the justices still on the supreme court. The other two votes were Ginsburg and Breyer.
Assuming Jackson who is Breyer’s replacement selected by Biden also votes pro trans that's a 5 : 4 majority for trans. If Barret who replaced Ginsburg and was selected by Trump also voted pro trans it would be 6 : 3.
Of those two, Jackson as a liberal justice appointed under Biden is seen as pro LGBT. When appointed, the leader of the pro LGBT advocacy group GLAAD - Wikipedia tweeted:
“LGBTQ rights are under attack all across this country, and today’s confirmation of Judge Ketanji Brown Jackson to the U.S. Supreme Court is a critical step to ensure our hard-won progress is not reversed by those using the courts to fight outdated culture wars,”
. History Is Made with Ketanji Brown Jackson’s Confirmation to the Supreme Court | GLAAD
The tweet is here
. Sarah Kate Ellis (@sarahkateellis) on X
Barret is unknown on this topic with no previous voting record which is why it could be either 5 : 4 or 6 : 3. That Barret was selected by Trump makes absolutely no difference to what she would decide. The Supreme Court Justices can’t be fired by presidents and are immune to any threats from them.
Cases that seem similar to lay people may be legally very different. But that is what they would decide based on the changes in composition of the court and the conservative justices record on this topic and assuming that Jackson since he is liberal and appointed by Biden is likely to vote pro-LGBT. The unknown vote is Barret with no track record on the topic.
This is that 2020 case: R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission - Wikipedia
Though there's a majority now of justices selected by Republican presidents this does NOT mean they will vote for Republican agenda cases, they often turn down Republican legislation attempts.
Worst case - transgender prisoners moved immediately to birth sex prisons - and transgender people who travel abroard might get processing delays when they return
The government could immediately move transgender prisoners to prisons aligned with their birth sex and it's possible that transgender people who travel abroad might get processing delays when they return if the system is changed to have no X option to enter into computers - they might need to wait to be given a new ID.
==============
QUOTE STARTS
Jennifer C. Pizer, the chief legal officer at Lambda Legal, a civil rights organization that litigates on behalf of LGBTQ Americans, said she expects her organization and others to file lawsuits against the administration over the executive actions.
"The president can't, with a wave of a pen, change the reality of who people are and the fact that we as a community of people exist," Pizer said. "We have equal protection rights, just like anybody else does."
Another lawyer and legal expert in the LGBTQ community said that even though Trump's executive order on gender identity will surely be challenged in court, the administration can implement the order and, in some cases, make immediate changes.
The expert, who asked that their name not be published so they could speak candidly about the executive order, noted that prisons, migrant shelters and rape shelters could immediately begin moving transgender people into spaces that align with their birth sex as opposed to their gender identity. That means, for example, trans women serving time in women’s prisons could in short order be moved to male prisons.
The lawyer also said transgender Americans — especially those who have X as their gender marker on federal documents like passports — should exercise caution when leaving the country, as they could have challenges re-entering the United States and could even be held in detention by border agents.
If a Customs and Border agent can't enter a person's X gender marker into their system to allow the person back into the U.S., that could mean the person would remain in Custom and Border Protection custody "until they can work with the Department of State to get an alternate ID issued," the lawyer said.
Still, some changes — such as the way agencies handle health care for transgender Americans or the way the Department of Housing and Urban Development protects trans tenants from being evicted by landlords — could take longer to implement because agencies will have to go through a process that takes months or even years to change the rules governing the agencies.
In some cases, the legal expert said, “it’ll take time for the agencies to issue Notices of Proposed Rulemaking, go through the comments, which is part of what they’re legally obligated to do, and respond to any deficiencies, and then publish a final rule.”
Once the anticipated legal challenges to the executive order are filed, courts could seek to block the implementation of the order by issuing injunctions. But courts could also decide to allow the order to be implemented as challenges work their way through the courts, including to the Supreme Court, which could side with the Trump administration.
Sarah Bride, the first ever openly trans member of Congress calls this a slingshot moment - pressure of being pulled backwards can propel to destinations never reached before
Though very little has happened and will happen in a practical / legal / administrative sense, this is a change emotionally. It is sure to be tough to be in a minority which is directly targeted in this way by your very president who is also promoting mass misinformation about what trans means.
There are positives here. Trans people do also have the first openly trans representative of them in the House.
Sara Bride calls moments like this slingshot moments when the pressure of being pulled backwards propels us to destinations we have not yet been.
This is a helpful way to understand it both for LGBTQ+ people and anyone else in a minority that is being attacked.
QUOTE STARTS
An advocate I talked to described moments like this as slingshot moments.
The pressure of being pulled backwards propels us to destinations we have not yet been.
Our charge in this moment is to summon our hope, to summon our faith and to remember that so long as we breathe, we hope and together we can turn that hope into historic progress.
Here she is talking about her win with that quote in context:
Transcript near the top of my blog post here:
In this case it may lead to a very high profile Supreme Court case forcing Trump’s administration to keep the X on passports. For sure at some point some big case is going to come to the Supreme Court and from past history they seem sure to rule pro trans.
We can’t say for sure for every case because what seems intuitively similar may be legally very different as seen by a justice. But for any case legally similar to R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission - Wikipedia they should rule similarly today, in a pro trans way.
A few high profile legal victories may help with public understanding that some people really are biologically trans.
I think all this is based on a misunderstanding, that the general public haven’t caught up with the science which challenges their intuitions based on long standing religious views in the USA. But the public has moved a huge way on LG which also used to be opposed on religious grounds, now the majority in Congress by far is pro LG. There isn’t much attention to B and then the science is equally clear on T.
The science is already there. It’s about awareness and percolating from cutting edge science research through to the medical profession first. This has already happened, the medical profession is fully behind T. So then it has to percolate further to the general public.
High profile legal cases might help there.
For the science see:
Kamala Harris’s concession speech - may help those of you worried about your rights - when we fight we win - but sometimes the fight takes a while - that doesn’t mean we won’t win
Harris's concession speech may help some of you. Especially those who see this election as a setback in recognition of your rights.
QUOTE STARTS
"Now, I know folks are feeling and experiencing a range of emotions right now. I get it. But we must accept the results of this election.
"Earlier today, I spoke with president-elect Trump and congratulated him on his victory. I also told him that we will help him and his team with their transition, and that we will engage in a peaceful transfer of power.
"A fundamental principle of American democracy is that when we lose an election, we accept the results. That principle, as much as any other, distinguishes democracy from monarchy or tyranny. And anyone who seeks the public trust must honour it.
…
"But hear me when I say: the light of America's promise will always burn bright. As long as we never give up. And as long as we keep fighting.
... "And we will continue to wage this fight in the voting booth, in the courts and in the public square. And we will also wage it in quieter ways in how we live our lives, by treating one another with kindness and respect, by looking in the face of a stranger and seeing a neighbour. By always using our strength to lift people up, to fight for the dignity that all people deserve.
...
"The fight for our freedom will take hard work. But like I always say, we like hard work. Hard work is good work. Hard work can be joyful work. And the fight for our country is always worth it. It is always worth it. ...
"To the young people who are watching... it is okay to feel sad and disappointed, but please know it's going to be okay.
"On the campaign, I would often say when we fight, we win. But here's the thing. Sometimes the fight takes a while. That doesn't mean we won't win... the important thing is don't ever give up...
"Don't ever stop trying to make the world a better place. You have power... and don't you ever listen when anyone tells you something is impossible because it has never been done before.
"You have the capacity to do extraordinary good in the world.
...
"I know many people feel like we are entering a dark time, but for the benefit of us all I hope that is not the case. But here's the thing America, if it is, let us fill the sky with the light of a brilliant, brilliant billion of stars.
"The light, the light of optimism, of faith, of truth and service... and may that work guide us, even in the face of setbacks, toward the extraordinary promise of the United States of America.
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