By Aaron Potenza, chair of the New Jersey Transgender Equality Task Force and policy consultant for Garden State Equality
Implications for New Jersey
It is important to remember that the New Jersey Law Against Discrimination (LAD) continues to protect New Jersey residents, including students and minors, from discrimination based on sexual orientation, gender identity, and gender expression. The LAD overrides federal policy changes and ensures that individuals can access sex-segregated spaces according to their identity. These protections extend to places of public accommodation (including schools), employment, and housing. For further information on the LAD’s application please refer to the resources below.
Discrimination or Harassment in Housing Based on Gender Identity or Expression, Discrimination or Harassment in Public Accommodations Based on Gender Identity or Expression, LGBTQ+ Staff Rights in Schools, and LGBTQ+ Student Rights in Schools.
Following this Executive Order, we anticipate a potential increase in discrimination against our community. Some institutions and individuals may mistakenly believe that the Executive Order and subsequent policies supersede the LAD (they do not). If you experience discrimination in New Jersey on the basis of any protected characteristic, including sexual orientation, gender identity, or gender expression, please report it to us here. You may also consider filing a formal complaint here with the New Jersey Division on Civil Rights.
Updated Monday, January 27.
Hours into his second term, President Trump signed an executive order purporting to “Defend Women” and “Restore Biological Truth.” It’s clear that these are not the true intentions of the executive order. The order gets both the law and the science wrong. The real goal is to deny the reality of intersex, transgender, and nonbinary people’s very existence, to make our lives more difficult to live authentically, and to decrease our visibility.
Where politics and policy, and especially Donald Trump, are concerned, we are likely to hear exaggerations about the scope and effect of an executive order. Below, we make clear what the actual known and unknown effects of the executive order are.
Executive orders are not law. They are essentially memos that direct agencies to make changes to existing policy. Those changes take time and must follow established processes. Additionally, litigation is sure to challenge unconstitutional policies, and in many instances is already being prepared. None of this is “effective immediately.” Additionally, much of the directive is vague, so it is difficult to predict exactly what changes agencies will make to existing policy and what new policies will be put into effect.
The executive order defines sex as binary and unchangeable, ignores the existence of intersex people, and provides a definition of sex that is not only inaccurate, but impossible to determine. This will make it difficult for agencies to clarify how it is that the government “knows” an individual’s sex which opens up all sorts of concerns as to how this can be implemented as well as opportunities for pushback and litigation.
The executive order directs certain agencies to make changes to federal identity documents, records, and forms that include sex (passports, visas, and Global Entry Cards), removing nonbinary markers from those documents and reflecting an applicant’s sex as it is defined in the executive order. It is unclear at this point how long these changes will take, or how they will be implemented. This order does not change the issuance of state, territorial, or tribal identification documents such as birth certificates or licenses (though it is unclear what it implies for REAL ID). It does not state that previously issued federal documents will change.
This order does not change the issuance of state, territorial, or tribal identification documents such as birth certificates or licenses.
The executive order directs federally funded prisons, shelters, and detention centers to house transgender women with cisgender men. This is in clear violation of the Prison Rape Elimination Act and the Department of Housing and Urban Development’s Equal Access Rule, as well as existing case law that has found such policies can violate the Eighth Amendment’s prohibition of “cruel and unusual punishment.” At this time, it is unclear how quickly these changes will take effect and how they will be enforced. Litigation is certain to be quick, and implementation may be held up in the courts.
The executive order directs the Bureau of Prisons to review medical guidelines and “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.” Again, it is unclear how long it will take for this to go into effect. Denying hormone therapy to an individual already receiving that therapy goes against the consensus of the medical establishment and the non-discrimination provisions of the Affordable Care Act, and some courts have held that withholding medical treatment can violate the Eighth Amendment’s prohibition of “cruel and unusual punishment.” Litigation is likely. It is unclear at this time if the executive order will have an effect on health care for intersex, nonbinary, and transgender people who are not incarcerated.
It is unclear at this time if the executive order will have an effect on health care for intersex, nonbinary, and transgender people who are not incarcerated.
Update: As of January 23, 2025, the State Department has suspended applications for individuals who are seeking a gender marker change or who do apply for an “X” marker. The order covers in process and future passport applications. It is unclear how passports that already have an “X” marker will be handled, with Secretary of State Marco Rubio stating that: “guidance on existing passports containing an X sex marker will come via other channels.” At present, passports issued prior to the order remain valid.
The executive order states that federal funds shall not be used to “promote gender ideology.” Again, the implications of this are unclear. Federal funds are received by government contractors and grantees, and while the intention here is to revoke any program or policy that respects intersex, nonbinary, and transgender people, how this will play out is another unknown with litigation almost certain.
As a transgender person, I know intimately the fear that this administration and these actions can strike in our hearts. For the most vulnerable among us, the actions of this administration may have devastating consequences. This extends beyond this one executive order and the policies to follow, as the anti-DEI and anti-immigrant policies of this government (to name just a few) will also impact many in our community. It is important at this time that we take care of ourselves and each other, and that we promote accuracy, not fear.