The high court’s direction could depend on justices’ regard for a 2020 ruling that gender identity is covered by Title VII of the 1964 Civil Rights Act.
President Donald Trump’s executive orders on gender in the military, along with similar orders affecting prisons, pronouns on government documents, and pediatric medicine have spawned a host of lawsuits and pushed legal questions on transgender issues to the forefront of public consciousness.
The policy questions are not new: Does a biological male have a right to use female locker rooms? Can the use of certain pronouns and identifiers be compelled? Is it right to allow hormonal treatments on minors, especially when those changes cannot be reversed?
What is new is how directly the president of the United States is tackling them.
On May 6, the Supreme Court allowed the Trump administration to ban openly transgender persons from serving in the military as litigation challenging the order plays out.
Two days later, the Department of Defense said around 1,000 such persons would “begin the voluntary separation process.”
The court battles playing out may ultimately end up at the Supreme Court. Yet, the direction the justices will take is unclear, due in part to the court’s crucial 2020 decision on sexual orientation and gender in Bostock v. Clayton County.
The courts will now have to grapple with constitutional questions about the nature of equal protection under the law and what constitutes sex-based discrimination. The results could be a defining legacy of the current administration.
The Executive Orders
On his first day in office, Trump issued an order saying the government would recognize two sexes, male and female. This order directs federal agencies to eliminate “nonbinary” classifications on government documents—“X” instead of male or female—and says government-issued identification must reflect individuals’ biological sex.
The order commanded government agencies to scrub websites of language promoting “gender ideology,” the belief that one’s gender may differ from one’s biological sex.
Trump’s order also directed the Federal Bureau of Prisons to house male inmates according to their biological sex, and to stop using federal money to pay for their hormone treatments.
By Stacy Robinson and Sam Dorman
