JESSICA LAURENCE—Within his first twenty-four hours back in office, President Donald J. Trump signed a sweeping executive order, aimed at eliminating ‘gender identity’ as a recognized category in federal policy, redefining sex strictly as male or female based on biological characteristics at birth. In a slew of subsequent orders, his administration has implemented policies that significantly impact transgender Americans, a population of roughly 1.6 million, from serving in the military, accessing gender-affirming medical care, and participating in extracurricular activities.
These orders have sparked immediate legal challenges, with courts weighing their constitutionality under both the Equal Protection Clause and longstanding precedents in discrimination law. At the heart of these executive orders lies a familiar yet pressing question: has Trump stretched the limits of his presidential power, potentially violating constitutional provisions?
On January 27, 2025, President Trump signed an executive order barring transgender individuals from serving in the military, citing concerns over unit cohesion, mental and physical readiness, and the integrity of military service. The order mandates that all service members must serve under the sex assigned at birth and prohibits gender-affirming medical treatments within the military. In a statement, Trump asserted that expressing a transgender identity “conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle.”
This order raises significant Equal Protection concerns under the Fifth and Fourteenth Amendments. In United States v. Virginia, the Supreme Court struck down the Virginia Military Institute’s (VMI) male-only admissions policy, holding that government policies differentiating based on sex must have an “exceedingly persuasive justification.” The ruling established that sex-based classifications require heightened scrutiny, meaning the government must show that its policy is substantially related to an important governmental interest. The Trump administration would need to prove that banning transgender individuals from military service directly advances unit cohesion and operational effectiveness—claims that were largely refuted by prior military studies, including those conducted under Obama Administration’s “Don’t Ask, Don’t Tell (DADT) policy.
Additionally, Romer v. Evans held that a law motivated by animus towards a specific group cannot stand under rational basis review, the lowest tier of constitutional scrutiny. If courts determine that Trump’s ban is rooted in hostility rather than legitimate military concerns, it is unlikely to survive.
President Trump’s order directs federal agencies, including Medicaid and TRICARE, to cease funding gender-affirming care for individuals under 19. It describes puberty blockers, hormone therapy, and surgeries as “maiming” and labels gender-affirming treatments as “junk science.”
This policy also raises questions about whether any lower courts have applied Bostock outside of the employment context, which could help measure the likelihood that the Supreme Court would be willing to do so here. Notably, the case of U.S. v. Skrmetti is pending before the Supreme Court, which could address whether the president can ban a medical procedure nationwide, contrasting with allowing states to make such decisions.
This policy implicates multiple constitutional doctrines. First, under the Spending Clause, Congress—not the President—controls the allocation of federal funds. Trump’s directive may therefore exceed his executive authority, raising concerns under Youngstown Sheet & Tube Co. v. Sawyer, which held that the President cannot unilaterally seize control over an area where Congress has already acted.
Second, the order may violate the Equal Protection Clause. The Supreme Court’s decision in Bostock v. Clayton County expanded Title VII protections to include discrimination based on gender identity, suggesting that sex-based discrimination includes policies targeting transgender individuals. While Bostock directly addressed employment discrimination, courts may apply its reasoning to health care discrimination under Section 1557 of the Affordable Care Act.
Moreover, Griswold v. Connecticut and Planned Parenthood v. Casey reaffirmed that personal medical decisions—including those involving bodily autonomy—are protected under the Due Process Clause. If courts determine that gender-affirming care falls under this umbrella, Trump’s order could be blocked as an unconstitutional interference in medical decision-making.
Trump’s order also mandates that transgender women in federal prisons be transferred to men’s facilities and bars inmates from receiving gender-affirming medical care. It further eliminates prior policies allowing transgender inmates to petition for housing placements based on their gender identity.
The Eighth Amendment’s prohibition on cruel and unusual punishment requires that prison officials protect inmates from violence. This protection is especially crucial for vulnerable populations, including transgender people, who face disproportionate risks in correctional facilities. In Farmer v. Brennan, the Supreme Court ruled that deliberate indifference to an inmate’s substantial risk of serious harm constitutes cruel and unusual punishment. The Court explicitly recognized that transgender inmates face a heightened risk of sexual violence in male prisons, making Trump’s policy susceptible to challenges under Farmer.
Finally, Trump’s “Keeping Men Out of Women’s Sports” order bans transgender women and girls from participating in female sports, mandates federal investigations into Title IX violations by schools that permit transgender inclusion, and prohibits federal funding for schools that support social transitioning for transgender students. The order declares that gender identity is not a valid basis for determining sex and that such policies undermine “dignity and truth” in women’s athletics.
The debate over this policy centers on whether it violates Title IX, a federal law designed to prevent sex-based discrimination in education. As outlined in Bostock v. Clayton County, discrimination based on gender identity constitutes sex discrimination under Title VII. Although Title VII applies to employment, its rationale may be extended to Title IX cases, which prohibit sex discrimination in educational settings.
The battle over these executive orders is far from over, and the courts will play a critical role in determining their fate. But beyond the legal arguments, these orders send a clear message: transgender people are less protected under the law than cisgender people. By limiting their access to healthcare, military service, and legal recognition, these policies not only hinder their rights, but also shape how equality under the Constitution may be understood moving forward.
