Trump "defends women" by terrorizing them
His "gender ideology" executive order is already harming people.
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On Monday, January 20, just hours after being sworn in, President Trump signed an executive order for “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” It declares that transgender people do not exist and instructs federal officials to “defend women’s rights and protect freedom of conscience” by eradicating any trace of these non-existent people from public life.
From passports to bathrooms to schools, the president ordered the government to misgender, deny, and denigrate all trans people it comes into contact with. And he singled out federal prisoners, the people most directly under government control, for abuse.
Six days later, one of those federal prisoners, a trans woman housed at a facility in Massachusetts, sued Trump demanding a halt to her forcible detransition and transfer to a men’s prison. She pointed out that putting trans women in a men’s prison does the opposite of “defending women.”
In fact, it virtually assures that they will be routinely sexually assaulted. And on top of that, it violates a whole passel of federal laws.
Weaponized hate
Trump didn’t wake up on Monday morning and suddenly decide to scapegoat a vulnerable population. Indeed, he based his campaign on demonization of trans people. Ads proclaiming “Kamala Harris is for they/them. President Trump is for you,” played during what felt like every commercial break during NFL games and NASCAR races, airing some 30,000 times in each swing state in the hundred days before the election.
Like George W. Bush using gay marriage as a wedge issue in 2000, Trump wielded fear and hatred as a weapon, whipping up visions of imaginary women in danger, desperate for sane adults to ride to their rescue. No appeal to decency or factcheck pointing out that trans women were not taking over sports could stop it, and, after spending tens of millions of dollars, Trump rode the wave of hate right into the White House.
Once there, he was quick to deliver on his promise to hurt the people he’d told his supporters to fear.
“Basing Federal policy on truth is critical to scientific inquiry, public safety, morale, and trust in government itself,” his EO reads, adding that “these sexes are not changeable and are grounded in fundamental and incontrovertible reality.”
This is contrary to the findings of every major medical, psychiatric, and scientific organization in America, but that’s hardly relevant when you’re dictating objective reality by executive fiat.
Trump’s EO includes a biologically illiterate definition of “Female” as “a person belonging, at conception, to the sex that produces the large reproductive cell” and “Male” as “a person belonging, at conception, to the sex that produces the small reproductive cell.”
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The order instructs federal officials to “use the term ‘sex’ and not ‘gender’ in all applicable Federal policies and documents … including passports, visas, and Global Entry cards,” misgender all federal trans employees and bar them from appropriate restrooms, and “assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.”
This last provision is reported to be the reason the federal government was functionally ordered to shut down earlier this week, in violation of the Constitution’s Spending Clause and thousands of federal contracts — the Trump administration wants to de-”woke”-ify all federal grants and contracts to ensure they comply with the newspeak and don’t promote “gender ideology” or DEI.
Perhaps most cruelly, Trump ordered the Bureau of Prisons to “ensure that males are not detained in women’s prisons or housed in women’s detention centers” 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.”
Performative cruelty
The order had immediate consequences for real people, including a transgender woman from Massachusetts going by the pseudonym “Maria Moe” who’s currently incarcerated at a low-security women’s prison.
Moe’s complaint contains heavy redactions to protect her privacy and safety, and indeed most of the docket remains under seal. But we do know that Moe lived as female since adolescence and has been prescribed hormones to treat sever gender dysphoria since she was 15.
The Bureau of Prisons (BOP) has always classified Moe as “female” and housed her in a women’s prison. This is consistent with the Prison Rape Elimination Act of 2003, which sought to stem the epidemic of sexual violence in America’s carceral facilities by establishing national standards to protect inmates.
The law required ongoing collection of data and instructed the attorney general to “publish a final rule adopting national standards for the detection, prevention, reduction, and punishment of prison rape.” Those rules were later codified at 28 CFR § 115, and § 115.41 requires that “All inmates shall be assessed during an intake screening and upon transfer to another facility for their risk of being sexually abused by other inmates or sexually abusive toward other inmates.”
When assessing the inmate’s “risk of sexual victimization,” the prison is obligated to consider “the physical build of the inmate,” “the inmate's own perception of vulnerability,” and “whether the inmate is or is perceived to be gay, lesbian, bisexual, transgender, intersex, or gender nonconforming.” We may infer from Moe’s complaint that she was assessed according to this regulatory rubric and deemed to pose no danger to her fellow inmates. Indeed she continued to receive hormone treatments, as prescribed prior to her incarceration, and “has no violent disciplinary history, poses no threat to her female peers, and her presence in the women’s facility has not caused any disruption or interference with prison operations.”
But after Trump’s executive order, Moe was abruptly removed from the general population, placed in a segregated unit where she had no contact with other prisoners, and her record with the BOP was changed to refer to her as “male.” She’s been told that she will be sent to a male prison and forcibly detransitioned by being denied her medication and ordered to dress as a man.
As Moe notes in her complaint, trans prisoners suffer astronomically high rates of sexual violence — in some reports, 10 times higher than cisgender inmates. And Moe, because of her personal circumstances, will face serious danger if housed in a men’s facility:
In a men’s facility, Maria Moe will be at extremely high risk of rape and sexual assault. She may also be subjected to humiliating, terrifying, and dangerous circumstances like being strip searched by male correctional officers and forced to shower among men, with her female body, including her breasts, exposed and vulnerable to sexual violence.
These are exactly the harms that the PREA was enacted to prevent. Forcing trans women into men’s facilities will certainly increase the rate of rapes and sexual assaults, the theoretical harm which Trump’s executive order was designed to prevent. But, of course, he doesn’t actually care about sexual assaults. He cares about demonizing the tiny number of trans prisoners — roughly 2,000, according to the Marshall Project — so he can claim to have solved the non-existent problem he whipped his supporters into a frenzy about.
Moe’s case
Moe seeks declaratory and injunctive relief on several constitutional and statutory grounds. She claims discrimination on the basis of sex under the Due Process Clause of the Fifth Amendment, noting that sex classifications trigger strict scrutiny, which requires the government to prove that the challenged action is narrowly tailored to further a compelling state interest.
Sections 4(a) and 4(c) [of the executive order] require BOP to treat incarcerated people differently depending on their sex. Under section 4(a), women who are not transgender can go on living in a women’s facility, while otherwise similarly situated transgender women must be transferred to a men’s facility based on their birth sex. Similarly, under Section 4(c), women who are not transgender are able to obtain the same medical treatments that are prohibited if they are prescribed for transgender women.
She also challenges those sections of the order under the Eighth Amendment, which bans cruel and unusual punishment, arguing that transferring her to a men’s prison will “pose a substantial risk of serious harm, including an extremely high risk of violence and sexual assault.” She says that withdrawing her treatment for gender dysphoria constitutes deliberate medical indifference in violation of the Eighth Amendment, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act of 1973. And she claims that it violates the Administrative Procedures Act to arbitrarily cancel a duly propounded federal regulation by executive order, as Trump did when he instructed his (as yet unconfirmed) attorney general to replace § 115.41 with a new regulation that accords with his own bigoted edicts.
What Moe does not do is mention Bostock v. Clayton County, the 2020 Supreme Court decision penned by Justice Neil Gorsuch and joined by Chief Justice John Roberts, holding that discrimination on the basis of gender identity or sexual orientation violated Title VII’s ban on discrimination in the workplace “because of sex.”
That’s likely because the Court has spent the past four years assiduously walking back that holding, cabining it to the context of employment only. The Court has not bothered to explain why discrimination against trans people at work is “because of sex,” but discrimination in healthcare is not. It allowed Idaho’s ban on gender-affirming care for minors to go into effect, though, and seemed entirely receptive to Tennessee’s claim that its ban on care was perfectly legal during oral arguments last month in a case called US v. Skrmetti. And so the lawyers for Moe took their cue from the Court and avoided Bostock entirely, grounding their claim in sex discrimination without invoking the most important sex discrimination case in the past five years.
Moe’s complaint was assigned to Judge George O’Toole, a Clinton appointee, and has been sealed since last week. It’s not clear what the status of the proceedings is as of this writing. But Maria Moe is not the only trans prisoner whose life will be uprooted by this order. And her case will be one of many that will likely wind up before the Supreme Court as the Trump administration levels its all-out attack on LGBTQ+ Americans.
Like the ban on gender-affirming care for minors, the forcible detransition and deliberate endangerment of trans prisoners is a performative act of cruelty with no purpose other than inflicting pain. Trump and his supporters are unbothered (to put it charitably) by trans prisoners being sexually assaulted if it furthers the goal of erasing trans people altogether. And if they have to pretend to be protecting women to do it, well, they certainly won’t be hindered by anything like shame.
That’s it for today
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Thanks for reading.
This horrid situation is not surprising, and I know there are people protesting it. However, are people marching on this issue of trans women in prison? I am glad there is a legal case going on, but it seems like it will take too long. Can the person ask for an emergency stay, until the case is fully adjudicated?
Two years ago when I said that Trump reminded me of Hitler when he was coming to power, someone castigated me for trivializing the horrors of the Nazis, which I was not doing. This story of anti-trans behavior reminds me how slowly different disliked groups were categorized and everyone who was not that category though "Oh I am safe," until their group was categorized. It feels like this to me. Some friends of mine here in Germany who are German and American like me, are discussing how many parallels we see. At first I was just thinking of the DDR, with the spying and incarceration and killing, but not mass killings.
There are many groups of people who are going to face Trump's cruelty, and those who cannot be "repatriated" to countries they may or may not come from or belong to, we now have a prison camp opening up again on Guantanamo, which is out of sight, out of mind. I just remember that when Hitler started with exterminating "defective" children and went on to adults in asylums, there was a public outcry, and I was taught that he learned from that to do his killing out of the country, thus the transport trains. No one was supposed to come back and tell. That is what this cuban detention camp is like, it is a concentration camp for immigrants who are the "Jews" of this administration.
In Germany there is a heavy schedule of demonstrations planned for this month leading up to the elections. They are against a newly passed illegal immigration bill, that has the "center" right parties joining with the Right Wing AfD to pass the legislation. It is outrageous, and truly frightening how quickly people capitulate and become publicly evil if they think they can get away with it. None of them are going down on the right side of history.
"But, of course, he [Trump] doesn’t actually care about sexual assaults." Of course, considering he's an adjudicated rapist. Forcible detransitioning is horrible and must stop.