Is Trumps policy of only two genders in USA legal?

Legal Analysis: Legality of Trump Recognizing Only Two Genders in the USA

Source: www.sanalegal.org

1. Identify the Legal Issue and Applicable Legal Framework

The legal issue is whether a U.S. President, specifically Donald Trump, has the authority to unilaterally recognize only two genders (male and female) in federal policy or law. This issue implicates constitutional law, administrative law, and civil rights law, including:

- The Equal Protection Clause of the Fourteenth Amendment.

- Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e).

- The Administrative Procedure Act (APA) (5 U.S.C. §§ 551–559).

- Executive authority under Article II of the U.S. Constitution.

2. Core Legal Question

Can a U.S. President, through executive action or policy, legally limit federal recognition of gender to only two categories (male and female), and what are the constitutional and statutory constraints on such action?

3. Applicable Laws and Legal Framework

- Constitutional Law: The Equal Protection Clause of the Fourteenth Amendment prohibits states from denying any person "the equal protection of the laws." While this applies directly to states, the Fifth Amendment's Due Process Clause imposes similar constraints on the federal government.

- Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e): Prohibits employment discrimination based on race, color, religion, sex, or national origin. The Supreme Court held in Bostock v. Clayton County, 590 U.S. _ (2020), that discrimination based on gender identity or sexual orientation constitutes sex discrimination under Title VII.

- Administrative Procedure Act (5 U.S.C. §§ 551–559): Governs how federal agencies develop and issue regulations, requiring notice-and-comment rulemaking for substantive rules.

- Executive Authority: The President's authority to issue executive orders or directives is derived from Article II of the U.S. Constitution and must comply with existing federal law and constitutional protections.

4. Case Law and Legal Precedents

- Bostock v. Clayton County, 590 U.S. _ (2020): The Supreme Court held that discrimination based on gender identity or sexual orientation is prohibited under Title VII's prohibition of sex discrimination.

- United States v. Windsor, 570 U.S. 744 (2013): The Court struck down the Defense of Marriage Act (DOMA), emphasizing the federal government's obligation to respect state determinations of marital status and individual dignity.

- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984): Established the Chevron deference doctrine, which requires courts to defer to federal agencies' reasonable interpretations of ambiguous statutes.

- Department of Homeland Security v. Regents of the University of California, 591 U.S. (2020): The Court held that the Trump administration's rescission of the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious under the APA.

5. Analysis

- Constitutional Constraints: Any executive action limiting gender recognition to only two categories would likely face challenges under the Equal Protection Clause and Due Process Clause. The Supreme Court's decision in Bostock strongly suggests that gender identity is protected under federal anti-discrimination laws.

- Statutory Constraints: Title VII, as interpreted by Bostock, prohibits discrimination based on gender identity. An executive action limiting gender recognition would conflict with this statutory framework.

- Administrative Law Constraints: Under the APA, any substantive rule change by a federal agency must undergo notice-and-comment rulemaking. An executive order or directive that attempts to bypass this process would likely be deemed arbitrary and capricious, as seen in Department of Homeland Security v. Regents.

- Executive Authority: While the President has broad authority to issue executive orders, such orders must comply with constitutional and statutory limits. An order limiting gender recognition would likely exceed this authority.

6. Counterarguments and Rebuttals

- Counterargument: The President has broad discretion in setting federal policy, including defining terms like "gender" for administrative purposes.

- Rebuttal: This discretion is not unlimited and must comply with constitutional and statutory protections. The Supreme Court's decision in Bostock explicitly extends Title VII protections to gender identity, limiting the President's ability to redefine gender in a way that excludes non-binary or transgender individuals.

- Counterargument: The federal government has historically recognized only two genders, and this policy is consistent with long-standing practice.

- Rebuttal: Historical practice does not override constitutional and statutory protections. The Supreme Court has consistently held that evolving understandings of civil rights must be respected, as seen in Obergefell v. Hodges, 576 U.S. 644 (2015), which recognized same-sex marriage.

7. Broader Consequences and Policy Considerations

- Fairness and Equality: Limiting gender recognition to two categories would disproportionately harm transgender and non-binary individuals, undermining their rights to equal protection and dignity.

- Federalism: States have increasingly recognized non-binary gender markers on identification documents. A federal policy limiting gender recognition would create conflicts with state laws and policies.

- International Implications: Such a policy could harm the U.S.'s reputation as a leader in human rights and LGBTQ+ protections.

8. Conclusion

A U.S. President does not have the legal authority to unilaterally limit federal recognition of gender to only two categories. Such an action would violate constitutional protections under the Equal Protection and Due Process Clauses, conflict with Title VII as interpreted by Bostock, and likely fail to comply with the procedural requirements of the APA. The Supreme Court's jurisprudence strongly supports the inclusion of gender identity within federal anti-discrimination protections, making any attempt to limit gender recognition legally untenable.

9. Action Steps

1. Legal Challenge: If such an executive action were attempted, affected individuals and advocacy groups could file lawsuits in federal court seeking injunctive relief and declaratory judgments.

2. Congressional Action: Congress could pass legislation explicitly protecting gender identity and non-binary recognition, reinforcing the protections established in Bostock.

3. State-Level Protections: States should continue to enact and enforce laws recognizing non-binary and transgender individuals, ensuring protections regardless of federal policy changes.

Statutory and Case Law Citations

- U.S. Constitution, Fourteenth Amendment, Equal Protection Clause

- U.S. Constitution, Fifth Amendment, Due Process Clause

- Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

- Administrative Procedure Act, 5 U.S.C. §§ 551–559

- Bostock v. Clayton County, 590 U.S. _ (2020)

- United States v. Windsor, 570 U.S. 744 (2013)

- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)

- Department of Homeland Security v. Regents of the University of California, 591 U.S. _ (2020)

- Obergefell v. Hodges, 576 U.S. 644 (2015)