Many of the Trump administration’s executive orders target trans rights and stand to have a major impact on the LGBTQ+ community. While these executive orders are understandably alarming, it is important to remember that executive orders cannot violate the U.S. Constitution, and that some of these orders have already been paused as they make their way through the courts. Ultimately, the courts decide whether an executive order is enforceable.
Many aspects of executive orders can take weeks, months, or even years to fully implement. During this time, the courts could determine that the executive order is unconstitutional. The Humans Rights Campaign notes that, “The President may attempt to influence public opinion or intimidate companies, organizations, and federal employees to comply with executive orders before their implementation is complete. Complying with executive orders in advance of their implementation can compound the harm done.”
While the Trump administration’s executive orders have resulted in widespread and immediate policy changes at the federal level, it is unclear how some aspects of these executive orders will be implemented or enforced, and already states have pushed back against executive orders that directly contradict existing state law, with Washington state being among them.
It’s important to remember that many of these executive orders are facing challenges in the courts, and it’s likely that the courts will ultimately find many of the Trump administration’s executive orders unconstitutional. The attorney general in Washington state, the ACLU, and other human rights organizations have already sued the Trump administration.
While aspects of these executive orders may have immediate impact of trans individuals and children, there are still steps you and your family can take to protect your rights.
If you live in a state that offers robust protections to trans individuals and families, many of your rights will likely continue to be protected in most instances.
In this article, we’ll explore the potential impact of recent executive orders, and help you understand how a family lawyer can help you secure your rights and your family’s rights in this time of uncertainty.
Executive Orders Impacting Trans Rights
Some recent executive orders that impact trans rights include:
Incorrect recognition
An executive order that incorrectly recognizes only two biological sexes, male and female. (At least one federal judge has already pointed out that there are not only two biological sexes and that the order not only erases trans individuals, but those who are intersex.
Impact
The immediate impact of this executive order is to require individuals to use the sex assigned to them at birth on federal documents, like passports, and to place a gag order on federal agencies when it comes to recognizing the existence of trans and intersex individuals.
The federal government will not issue new passports using the gender marker X and will require individuals to use the gender marker assigned at birth on their passport. It isn’t clear how intersex individuals born in states that recognize X as a gender marker would receive a passport given this executive order.
The ACLU additionally notes that it isn’t clear yet how the order will be enforced in “educational settings, health care, housing, and other federally funded programs.” The executive order does currently impact trans access to bathrooms in federal buildings (The Hill reports that federal agencies have been directed to enforce a transgender bathroom ban).
In its further implementation, the order could potentially also impact access to workplace spaces, schools, and domestic violence shelters, though the courts recently blocked a directive that would have forced transgender women to be moved into men’s prisons.
What You Can Do
Trans and intersex individuals who have valid passports that reflect their correct gender might want, for the time being, to avoid attempting to renew or change their passports until the courts have had a chance to fully review the legality of this executive order.
The state of Washington will still amend birth certificates to reflect an individual’s correct gender expression.
According to Immigration Equality, if you have never applied for a passport, the State Department will most likely look to the gender on your birth certificate or citizen document when listing your gender on your U.S. passport. If the state department learns that the birth certificate has been amended or if the gender listed on your birth certificate doesn’t match your sex in federal databases, the State Department might ask you to provide additional evidence before issuing you a passport. Intersex individuals who have used the gender marker X since birth, might want to contact a lawyer or their local ACLU chapter for legal assistance.
The executive order does not affect state licenses or identification cards. Finally, if you want to change your name on your passport or other federal documents, the executive order does not apply to name changes, only to gender designation.
When it comes to equal access to facilities and other protections, Washington state law (WAC 162-32-060) indicates that individuals have a right to access “gender-segregated facilities” in a manner “consistent with that individual’s gender expression or gender identity.” Washington state law continues to recognize the existence of trans individuals and continues to provide protections for trans individuals wishing to access gender-segregated public spaces. Â
Military ban on transgender servicemembersÂ
Impact
According to several news outlets, a Washington D.C., federal judge has blocked the Trump administration’s attempt to remove transgender servicemembers from the military.
The military’s social media channels claim that enlistment of transgender individuals has been paused and that medical care supporting transitions has been paused. As of the writing of this article, the Veteran’s Affairs websites continue to provide information to help Veterans access gender-affirming care.
What You Can Do
Continue to remain in touch with your recruiter if you are trying to enlist. Continue to seek gender-affirming care through the VA until further guidance is provided.
Preventing individuals under age 19 from receiving gender-affirming careÂ
Impact
Despite the Trump administration’s threats to withhold federal funding from hospitals that receive public funds, individual states have pushed back (the New York Attorney General warned hospitals that failing to provide gender-affirming care could be in violation of state law).
On February 7, the state of Washington joined attorneys general in Minnesota and Oregon to challenge the constitutionality of the order that criminalizes and ends funding for gender-affirming care. On February 13, a federal judge blocked this executive order. As of today, trans youth living in the state of Washington continue to have access to gender-affirming care.
What You Can Do
Check in on your trans friends and family members and help them get mental health support if they are struggling. According to a study published in Nature Human Behavior, between 2018 and 2022 (a period where 48 anti-transgender laws were passed), suicide attempts among transgender youth increased by 72%.
Preventing transgender girls from participating in women’s sports
Impact
The NCAA has stated that it will comply with the executive order. According to recent news reports, the Washington Interscholastic Activities Association has made changes to the handbook that governs school sports, prohibiting trans students from participating in girls’ sports, creating a co-ed division for trans students.
What You Can Do
This executive order is still being litigated in the courts. Individuals who have been impacted can contact the attorney general’s office to provide witness testimony and impact statements. The executive order only applies to sports organizations that receive Title IX funding. It would appear to be outside the scope of the executive order to penalize private schools or groups, but the Trump administration has shown in recent weeks the many ways that it has been able to target private institutions through withdrawing government funding and grants.
Diversity, Equity, and Inclusion Purges
Impact
The Trump administration has been closing diversity, equity, and inclusion departments at the federal level and has been firing individuals who play a role in enforcing and supporting diversity, equity, and inclusion policies. The private sector has sometimes followed suit with these purges, though there have been some notable exceptions. Most recently, Harvard University resisted the Trump administration’s demands to end its diversity, equity, and inclusion programs.
What You Can Do
While there is concern that diversity, equity and inclusion purges will start to impact the private sector and may impact the language that can be used during the hiring process, individuals can still use their free speech and dollars to pressure companies to continue their diversity, equity, and inclusion initiatives.
Trans Parental Rights During Custody DisputesÂ
With all the recent executive orders, it is understandable that trans parents might feel concerned about how the courts might handle custody disputes, or custody issues. The good news is that the state of Washington offers a wide range of parental protections to LGBTQ+ parents and these protections extend to trans parents as well.
If your custody dispute happens outside of Washington state because your children live in another state, or because you and your spouse live in different states, things can get more complicated. If one parent is in the military, the family might have additional options about where to file for divorce and where to fight for custody.
For trans parents, or for parents who come out as trans during their marriage, this could raise custody issues, especially for trans parents if their divorce is initiated in a state whose laws are hostile to trans and LGBTQ+ individuals.
According to Advocates for Trans Equity, “Parents who have come out or transitioned after having a child with a spouse or partner have seen their gender transition raised as a basis to deny or restrict child custody of visitation.”
If you are a trans parent facing divorce, it is more important than ever to take steps to protect your custody rights. Truce Law is a collaborative divorce law firm in the state of Washington that can help you navigate your divorce if you are facing a custody battle, or questions about which state has jurisdiction over your divorce. If you live in Washington state or have ties to Washington state, and are LGBTQ+, there may be benefits to filing for divorce or finalizing your parenting plan in the state of Washington.
Trans Paternity & Maternity Rights
Under Washington’s Uniform Parentage Act, if you are married and a child is born during your marriage, the state will automatically presume that the person giving birth, and their partner, are the child’s parents.
Furthermore, in Washington state, parentage will be presumed if “the individual resided in the same household as the child for the first four years of the life of the child…and openly held out the child as the individual’s child.”
If you are the child’s biological parent, you are the child’s parent regardless of whether you transition or change your identity paperwork, though you may want to update your child’s birth certificate and documents to reflect any name changes so that all documentation is consistent.
If you are not your child’s biological parent, adoption or a parentage judgement can formally secure your parentage rights.
Even if your parentage is recognized in the state of Washington, the non-biological parent might still want to seek an adoption or parentage judgement in Washington. Not all states will acknowledge parentage based on the non-biological parent being named on the birth certificate alone. And not all states recognize individuals who have served in the parental role and have developed a parent-child bond.
Parentage laws can vary from state to state. If you and your partner move to a state that is less friendly to trans and LGBTQ+ rights, if you don’t have a parentage judgement or adoption, as a non-biological parent, you could face issues.
Court judgements and adoptions must be recognized in every state under the U.S. Constitution. LGBTQ+ parents and trans parents may want to speak to a family lawyer in the state of Washington to take steps to ensure that their parentage would be recognized in all 50 states.
Seeking Gender-Affirming Care for a Trans Child
The Trump administration’s executive order barring trans youth from receiving gender-affirming care has been put on hold while the case moves through the courts. Attorneys general in the state of Washington (as well as Oregon and Minnesota) sued the Trump administration over the executive order. For the time being, trans youth and their families can seek the care they need.
The American Medical Association has issued a statement asking governors to oppose any laws that would prevent trans youth from receiving gender-affirming care, calling recent actions by the government, “a dangerous intrusion into the practice of medicine.” The medical establishment continues to hold that gender-affirming care is lifesaving. It is important that children who are trans or gender-nonconforming receive appropriate mental health support.
If you are a parent seeking care for a trans child, or support for your trans child in school, the state of Washington continues to offer robust protections for trans youth, though recent executive orders threaten youth participation in sports, and potentially might impact protections for trans youth available through public schools.
According to ProPublica, the Department of Education was recently ordered to end all support for trans students. It isn’t clear how far-reaching this order will go, or exactly how it will be implemented. In Washington state, parents can help their children take steps to legally change their name and sex designation on official documents, including their birth certificate.
School officials must use names and pronouns listed on these official documents. While executive orders may limit whether a child’s gender can be changed on federal documents, state law continues to govern state identification and birth certificates and can provide additional protection to parents if they face pushback from school officials about using their child’s correct name or gender in a school setting.
If you are thinking of moving to the state of Washington to seek gender-affirming care for your child, it may be important that you and your partner be both on the same page, or that you seek the assistance of a family lawyer before you do anything. There have been discussions of using the Parental Kidnapping Prevention Act to prevent parents from taking a trans child from one state to a “sanctuary state,” for medical care, if the other parent objects.
This kind of situation would be a custody matter, and if you are concerned that you might face issues if you try to help your child move to another state to seek medical treatment, you might want to speak to a family lawyer as soon as possible.
If you live in the state of Washington and you and your co-parent disagree about medical care or treatment for your trans or gender nonconforming child, this could create a legal decision-making issue that may require the assistance of mediators, family lawyers, or even the courts. Truce Law is a collaborative law firm in the state of Washington that can help you and your co-parent navigate differences if you are facing conflict over your child’s medical treatment.
Advance Medical Directives & Medical Powers of Attorney
If you should become incapacitated and become unable to make medical decisions on your own behalf, an advance medical directive can ensure that your wishes for ongoing gender-affirming care are honored. Medical powers of attorney can name your partner as the person you want responsible for making medical decisions on your behalf should you become unable to make medical decisions for yourself. A family lawyer can help you with these documents.
If you are traveling outside the state of Washington, especially if you plan to travel to a state that is discriminatory to trans individuals, it is a good idea to carry copies of all documentation should an issue arise.
A Family Lawyer Can Help
Trans, nonbinary, and intersex individuals face unique family law challenges.
- If you and your co-parent disagrees about the medical care a trans child should receive, a family lawyer may be able to help you and your partner negotiate a legal decision-making agreement that is in the best interests of your child—or help you take your case to court to ensure that your child’s best interests are honored and they are able to receive the medical care they need.
- If you and your trans partner have children, you may want to speak to a family lawyer about whether adoption or a parentage judgement can protect your parentage rights across state lines.
- A family lawyer can help you get your documents in order so that you can continue to receive gender-affirming care in an emergency or if you become incapacitated.
Contact the family lawyers in the state of Washington at Truce Law today to learn more.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.