Amid Donald Trump’s recent attacks on transgender people, many critics of his Administration have cited the German pastor Martin Niemöller, whose 1946 poem “First They Came” describes Nazi Germany’s progressive targeting of maligned groups. Indeed, on the first day of Trump’s second term, he signed an anti-trans executive order decreeing that the federal government recognize only two sexes, male and female; since then, his Administration’s pursuit of groups that it deems enemies—immigrants, college protesters, white-shoe law firms—has progressed rapidly. But Trump’s anti-trans actions are not just opening moves in a battle against vulnerable groups. Nor are they simply fanning the flames of right-wing moral panic. The push to eradicate so-called “woke gender ideology” is also part of the assault on the government itself. The right understands this. It’s time the left did, too.
The administrative state, a term thrown around with much derision in conservative circles, is simply a label for what the government does to keep America running. In fulfilling its duty to attend to the health, safety, and welfare of the population, the state builds roads, regulates toxins, records deeds, issues identity documents, and studies birth, death, and disease. Whether passed by Congress or state legislatures, laws cannot specify all the minutiae involved in protecting the health and safety of the people. If a state legislature passes a law requiring its restaurants to maintain safe and sanitary conditions, its members are not sitting around deciding the correct food-storage temperatures.
Executive agencies exist, in large part, to make such determinations. Since the New Deal, they have developed tools—forms, protocols, expert reviews, and rules and regulations—to achieve goals set by legislatures. To implement broad legislative mandates, administrative agencies must create systems that categorize information about the public they serve, breaking down the population into discrete categories based on whatever classifications best support a particular purpose. A person’s identity can be sorted many ways, depending on the context: by age, marital status, income, occupation, residency status, parental status, and more. These categories aren’t timeless ontological judgments—they’re practical tools that help the government fulfill its duties.
One of those criteria is sex. Administrative agencies have often defined sex not to fit large philosophies about gender but to help themselves do their job. Until recently, when Republican-controlled state Houses began passing anti-trans bills, the Department of Motor Vehicles in almost every state allowed people to have an “M” or “F” gender marker different from their sex at birth. This is practical: it is in law enforcement’s interest for the D.M.V. to insure that applicants’ appearance, including their sex, matches how they’re described on their identity document. New York City’s Department of Homeless Services instructs unhoused people to “choose placement in a shelter type (men’s or women’s) that feels safest for them based on their gender identity” because the agency is tasked with trying to keep people off the streets. But when Departments of Health predict population changes, for instance, they rely instead on a definition of sex at birth, since it allows them to track sex ratios.
Sometimes agencies’ decisions help trans people; sometimes they don’t. But there is usually an underlying rationale that calibrates a particular definition of sex to an agency’s purpose. In other words, when it comes to governing, sex is not an input, with a predefined meaning, determining the state’s rules. It’s an output, a creation of those rules, reverse-engineered to fit what an agency needs sex to do. When senators tried to bait Justice Ketanji Brown Jackson, at her confirmation hearing, into offering up a strict definition of “woman,” she gave the answer anyone familiar with sex in the administrative state would give: “If there’s a dispute about a definition, people make arguments, and I look at the law and I decide.”
Trump’s executive order—titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”—instead declares that sex is binary and immutable, “grounded in fundamental and incontrovertible reality.” Female “means a person belonging, at conception, to the sex that produces the large reproductive cell.” Males belong, at conception, to the sex that produces the small one. That definition—nonsensical because there are no distinguishable reproductive cells at conception—applies to all agencies and programs of the federal government.
A deluge of policy reversals has followed. The Administration prohibited trans girls and trans women from participating in women’s sports, banned transgender people from serving in the military, reverted to putting sex at birth on federal identity documents, tried to transfer trans women to men’s prisons, and began requiring federal employees to use the bathrooms aligned with their birth sex, among other actions. “Gender” was replaced with “sex” on federal forms, and references to trans people on federal websites (including the National Park Service’s page about the Stonewall Uprising) were removed.
The assault on administrative flexibility is most visible at the National Institutes of Health, where rigid definitions actively prevent scientists and researchers from carrying out the work Congress mandated them to do. (Before Trump was elected, Russell Vought, who now leads the Office of Management and Budget, had explicitly called for “unwinding policies and procedures that are used to advance radical gender, racial and equity initiatives under the banner of science.”) By mid-May, the N.I.H. had cancelled more than six hundred million dollars in research grants related to transgender health. Even grants that included small numbers of transgender patients were affected. Jason Flatt, a researcher at the University of Nevada, Las Vegas, lost funding for a study that would have analyzed the medical records of two hundred thousand people in the course of ten years to understand more about dementia. “Of those two hundred thousand, only four thousand were L.G.B.T., but that was enough to have the award cancelled,” he said. “Basically, they’re saying all my grants are cancelled because they also include trans people.”
Scientists and researchers understand that sex is a multidimensional category; in their research, they choose whichever dimension of sex and gender—chromosomes, reproductive organs, genital phenotype, hormones, or psychological or social factors—best suits their purpose. The diktat defining sex obliterates the nuanced, purpose-driven tools that allow agencies to support this work effectively. In March, the Trump Administration gleefully publicized the slashing of N.I.H. studies on what it called “transgender” mice, even though these studies were designed to study the effects of hormones on disease, fertility, and H.I.V.-vaccine efficacy which had little to do with what the right wing has derided as “gender ideology.” (One of the studies sought to examine the effect of estrogen on asthma; researchers hoped to understand whether biological characteristics associated with sex play a role, and, if so, which ones.) The Department of Veterans Affairs recently carried out a study on the rate of prostate-cancer diagnoses among veterans who are trans women; if the study were to be ongoing, it would now be forced to represent its subjects as men with prostate cancer, erasing data that could lead to findings about how hormone treatment might affect the treatment of prostrate cancer. “Trans wasn’t incorporated into biomedical enterprises just for the advancement of trans health,” a researcher at the N.I.H told me. “It was because trans people are an edge case that helps us think about sex and gender in smarter ways for the betterment of the entire population.”
The scale of the Administration’s funding cuts is so large that it can be difficult to parse the logic behind some of them. Many rejections have been cursory, simply informing researchers that their projects no longer meet agency priorities. Such a lack of precision may be intentional. The N.I.H. researcher told me that the breadth and vagueness of Trump’s anti-trans and anti-D.E.I. executive orders encourage anticipatory compliance. “It’s in the vagaries where they amass power, since the vagueness has to be interpreted.”
Trump’s “Defending Women” order doesn’t just erase transgender people; along with the Administration’s attack on D.E.I. initiatives, it signals that the concept of gender itself has become a chief target. It is nearly impossible to study disparities in health outcomes without studying the social, cultural, and psychological traits that typically fall under the banner of gender. During the first year of the pandemic, for instance, more men than women were dying of COVID-19, and news organizations were quick to point to biological sex differences as the cause. But, when researchers from the GenderSci Lab at Harvard combed through the data, they pointed out that gender-related social factors could also play a significant role. How else to account for the fact that men were more likely to die of COVID-19 than women in New York, but not in Connecticut? If the Administration forces various agencies to excise gender from the study of health, the government won’t be able to gather the evidence needed to justify policies that would benefit a wide range of people, including, in the case of COVID, men.
To say that Trump’s executive order is a wrecking ball is to vastly understate its scope and impact. Wrecking balls follow an arc. Trump’s order is like a tornado, crashing unpredictably into departments, reports, standards, forms—and now scientific practice. The goal appears to be not just making villains out of gender and sexual minorities but, by dismantling the health, safety, and welfare infrastructure of the administrative apparatus, targeting the same women that Trump’s “Defending Women” purports to protect. Much of what the administrative state does is mundane. But if basic indices of public health and safety cannot be measured accurately—if agencies cannot do the work they’re chartered to do, the part of the state that attends to the health and well-being of the population withers. That may be the point. ♦
