Over the Past Year, the Trump Administration Has Been Rewriting Many States’ Trans Policies

In the last twelve months, Trump’s attacks against trans Americans have done more than even he’s said they’re doing. States need to fight back.

Trump signing executive orders, including EO 14168, during his first day in office | Image: The White House

Since taking office for the second time just over one year ago, Trump has made attacks against trans people a political centerpiece. Stemming from four executive orders issued early into his term, Trump has weaponized every facet of his administration—from the State Department and Social Security Administration to the Department of Homeland Security, Department of Health and Human Services, and ATF—against trans Americans.

For all this, the justification is always the same: a need to purge the federal government of any references to ‘gender ideology.’ But despite what Trump may claim—and what the executive orders explicitly say—these attacks aren’t just impacting policies at the national level; they’re bleeding over into state-level policies as well.

When it comes to gender-affirming care, the Trump administration has been particularly aggressive in overruling individual states’ authority. 8 days after his term began, Trump signed Executive Order 14187, which aims to ban federal funding recipients from providing care to trans people under 19. Up until that point, restrictions on gender-affirming care for minors had been up to individual states, but following Trump’s order, dozens of care centers have cut care for trans kids out of preemptive compliance.

Although blue states have laws safeguarding gender-affirming care access, Democratic attorneys general have wavered when asked to enforce these protections. Yes, they are suing the Trump administration over this, but they are also taking the position that acquiescing to Trump when faced with funding threats is acceptable. As a result, trans kids’ options continue to dwindle, something that will only get worse when the HHS finalizes a legally dubious rule that will condition Medicaid and Medicare participation on denying gender-affirming care to those under 18.

But, while it may not seem that way at first, Trump isn’t only controlling state policies over care for trans minors—he’s doing it for adults too. In February, the HHS rescinded a Biden-era policy that interpreted the ‘sex’ discrimination protections found within the Affordable Care Act to include gender identity. As a result of this rescission, which was affirmed by a court ruling in October of last year, health insurance companies will now be able to deny coverage of gender-affirming care should the enrollee be based in a state without discrimination protections.

Following this, in June, the HHS finalized a rule to prohibit coverage of gender-affirming care as an Essential Health Benefit (EHB) under ACA plans—which cover roughly 10% of Americans. Because of this change, only plans in states that mandate insurance coverage of trans healthcare will continue including it, with all but 5 of those Democratic-controlled states now having to shoulder the entire cost of providing those services.

And even for residents of states with these protections, insurance coverage of gender-affirming care is no longer guaranteed. In August, the Trump administration announced that “chemical or surgical modification of an individual’s sex traits” would no longer be covered under Federal Employee Health Benefits (FEHBs) insurance plans without regard to an employee’s state of residence. This marks the first time since 2016 that at least some insurance plans in states with gender identity anti-discrimination laws will not cover gender-affirming care.

These restrictions on FEHBs also had reverberations elsewhere in the country. Back in 2015, the US Virgin Islands issued a notice that its Medicaid program would, at minimum, match its benefits with those of FEHBs (more specifically, this Blue Cross Blue Shield plan). As such, for the past decade, the USVI had been the only US territory to explicitly cover gender-affirming care. However, because of Trump’s new restrictions, the current policy is now unknown—though it’s worth noting that the governor of the territory is supportive of trans people.

Trump is also overriding states on trans people’s bathroom access, and much like the attacks on gender-affirming care for minors, this also revolves around funding threats. In late July, the Department of Justice released a guidance memo instructing recipients of federal funding that “failing to maintain sex-separated athletic competitions and intimate spaces can also violate federal law.” Asserting the view that this policy should supersede state law, the Trump administration has coerced a number of universities—including Brown, Columbia, Cornell, Northwestern, and the University of Pennsylvania, all of which are in states where banning trans people from the bathroom is illegal—into agreements that echo this language and reference the aforementioned memo.

Moreover, Trump has separately gutted the gender identity employment discrimination protections established in the 2020 Supreme Court case Bostock v. Clayton County, and this has also impacted state policies. Following the ruling and Biden’s Executive Order 13988 seven months later, Republican-controlled Alaska, Florida, Montana, North Dakota, and Ohio announced that they were also expanding ‘sex’ to include gender identity and sexual orientation, but of these five, three—Alaska, Florida, and North Dakota—have since changed back to the previous definition.

While Florida appears to have quietly reverted its interpretation in 2022, Alaska and North Dakota continued to enforce the Bostock definition until last year, pulling their resources at around the same time that the federal Equal Employment Opportunity Commission (EEOC) began rescinding the expanded Biden-era policies. Even worse, it’s been reported that the EEOC is now refusing to investigate trans people’s discrimination claims, effectively making it much easier to get away with firing employees for being transgender in almost half the country.

And then there’s Trump’s actions concerning trans inmates. While at first, these attacks were strictly federal—with Trump ordering the Bureau of Prisons to strip trans inmates’ HRT access and house them according to their sex assigned at birth—last month, the Department of Justice announced that it was in the process of removing the protections afforded to trans inmates under the Prison Rape Elimination Act, or PREA.

When it comes to state-level policies, this is unfathomably consequential: as of writing, 36 of 50 states and 4 of 6 territories have explicitly tethered their policies surrounding trans inmates to the PREA. Of the 14 states that have independent policies, 11 are progressive, 1—Utah—imposes additional restrictions, and only 2—Alaska and Texas—will entirely refuse to house trans inmates according to their gender identity.

If that figure of 2 seems low, that’s because it is. For over a decade, the PREA has almost single-handedly held back attacks against trans inmates. In fact, the moment that the Trump administration’s changes are finalized, the number of states that will not house trans inmates on the basis of their gender identities under any circumstances is guaranteed to jump to at least 11. Moreover, in another 4 states, existing bans on gender-affirming care will likely result in the same outcome. 2 more states—Georgia and Montana—may also end up joining this group, but that depends on ongoing litigation.

For the remaining 19 states, the disappearance of the PREA’s protections will force them to adopt their own policies. At this point, it’s likely that most (if not all) of the 8 Republican states on this list will opt to fully restrict the rights of trans inmates. Put mildly, with this one policy change, the Trump administration has effectively legislated on behalf of most states. As a result, in half the country, Trump has unilaterally removed the safeguards for trans inmates, which were already exceedingly vulnerable to abuse from guards and other inmates.

In his first year back in office, Trump has systematically disproven everything we’ve known about the strength of the federal government. He’s forced entities to violate state law, commandeered state policy, limited trans people’s insurance coverage, and severely weakened federal discrimination protections. He’s done this aggressively, without the backing of Congress, and with the intention to push the bounds of federal power. But those who support Trump’s actions against trans Americans should know: this is a two-way street. What’s being done to trans people now can and should be done to defend trans people in the future.

That said, we don’t know how much further Trump is going to take it—especially as his administration gets more and more erratic. But whatever comes next, one thing is clear: blue states need to do better. As long as they continue to cede power to Trump, he will continue to take. And trans people will pay the price.