Roundtable #27 | The Legality of Identity in the Trump Era

Section I: Trump’s Ruling on Trans-Athlete Participation: Can “Sex” Be Redefined?

The legal framework around the participation of transgender individuals within their associated-gender sports has grown contested, condemned, and increasingly complex. The Civil Rights Act of 1964 extended the freedom to express one’s gender, sexual, and personal identities in public and private spaces, free from discrimination or limitation. While the controversy of transgender participation includes concerns of fairness and physical justice for female-born athletes, the legal restrictions present concerns for equal rights under the law. In 2024, President Biden grew aware of threats to transgender and sexual identity rights, subsequently instating greater protections for transgender athletes. Immediately, Trump vowed to roll them back, and he has followed through. On February 5th, 2025, President Trump signed an executive order titled “Keeping Men Out of Women’s Sports” (Executive Order 14201). The legality of this executive order breaches into numerous fields of civil rights regarding equal protections along gendered lines. It also extends the legal controversy between civil liberties and identity-based politics, and how these two have grown increasingly intersectional and interconnected. This chapter aims to unravel the legal obstacles surrounding the evocation of this order, its current and international social impact, and the relevance of upholding the law moving forward. 

Transgender Americans face legal barriers to accessing general health facilities and care. Because their rights within public and private spaces still rest on the discretion of the organization and region at hand, Transgender individuals' access to seeking psychological counseling and other services has been sparse. More specifically, access to gender-affirming healthcare is increasingly contested, and now denied, as demonstrated by the recently filed lawsuit by the American Civil Liberties Union. In PFLAG v. Trump, the restriction and halted access to treatments already place Trump’s recent order in the sphere of magnified physical harm. 

Executive Order 14201 holds priority in elevating “equal opportunity, fairness, dignity, and truth” within the sphere of sports. The legal framework in this policy change intends to reduce humiliation, silencing, and infringements on women’s privacy within the athletic setting. This argument thus aims to recenter women in the sports arena and not subject them to potential definitions of inequality that the Civil Rights Act outlines. Such hopes do imply that trans-women may perpetuate these very threats. Title IX, specifically, centers on the prohibition of discrimination based on sex in educational programs or activities, which would include sports. However, in April 2024 the Supreme Court halted the Biden administration’s proposed expansion of Title IX. This has created a premise of partial interpretation of Title IX within the Educational Amendments of 1972. This has framed the current legal precedent for how Title IX can be weakened, reinterpreted, and exercised altogether. 

With this in mind, President Trump’s proposed and applied definition of “sex” may suggest a narrower interpretation than used in precedent, which may exclude and violate one’s right to express their gender identity rightfully. It is also important to note that there is currently no federal law that bans discrimination on the basis of gender identity in public services like restaurants, some businesses, and public spaces. However, 13 states have designated discrimination towards transgender persons as unlawful. Indeed, if the federal government fully adopted the position that transgender women could not participate in women’s sports, it would effectively treat them differently based on their gender identity—which is seen by many legal experts and civil rights advocates as a form of discrimination. 

Our country has encountered narrow limitations of gender and sex identities prior, as demonstrated in the 2020 Georgia case Bostock v. Clayton County. This Supreme Court decision interpreted Title VII of the Civil Rights Act of 1964 to include discrimination based on sexual orientation and gender identity as unlawful. While this case dealt specifically with employment discrimination, its principles have been applied more broadly to argue that discrimination against transgender individuals is prohibited under federal law. This precedent could thus extend to impact sports as well. However, in tandem with the April 2024 halt of Title IX extension and Bostock v. Clayton County, it is a murky and convoluted argument on both sides of legal argument. 

As Trump’s executive order barring transgender athletes in NCAA activity reaches the courts, the legal obstacles for inclusion must be considered. Following the order, the NCAA issued an immediate policy change that reduced competing ability in women’s sports solely to athletes assigned female at birth. NCAA affiliated colleges and universities have since complied with these policies, upholding athletic statute and national policy. For example, West Virginia University passed a law that banned transgender women from competing in women’s sports, and there was significant pressure from community members on the university to comply with this law. While WVU allowed a transgender woman to continue competing, state lawmakers still hold the power to remove state funding from the institution if they did not follow the law.

Of course, legal and financial threats hold an influence on universities’ attempts to ban Trans-Athletes. Specifically, President Trump suspended $175 million in funding to the University of Pennsylvania, due to their 2022 allowance of a Trans-Female to participate and contribute to the victory of three individual swimming events in the women's Ivy League championships. Such funding freeze becomes contingent on what athletes are endorsed and who are not, which may bleed into violating the Equal Protection Clause as it treats Trans-Women unfairly compared to cisgender women in their respective sports. 

The International Covenant on Human Rights, which was adopted by the United Nations General Assembly in 1966, is a key international human rights treaty usually applied to controversies such as these. The United States is a signatory to this treaty. However, they have not ratified the Optional Protocol, which would allow the individual complaints in this case to arise and be applied for potential reversal. The Covenant includes several relevant civil and political rights regarding transgender rights in sports. Under the ICCPR, the elimination of transgender women from women’s sports could be seen as a violation of several fundamental rights guaranteed under the treaty, particularly the right to non-discrimination and the right to equality before the law.

Of course, resistance and legal arguments still emerge at the municipal level. The shielding and evading of compliance with executive orders can and is legally controversial within itself, but at the expense of civil rights legislation, it may not be. For example, Worcester, Massachusetts voted in February 2025 to become a “transgender sanctuary city,” which the ACLU defines as their “committing to refuse cooperation with entities that infringe on the rights of transgender individuals.” Thus, not only is the current grounds for the executive order underway, the extent at which states and cities show to or to not comply with this constitutional presidential right, comes at odds with what is the most legal frame for Trans and Gender Identity rights moving forward. 

By Reesa Venterea

Edited by Victor Tong 

Section II: On the Basis of Sex

Issued on January 20, 2025, Executive Order 14168 mandates the federal recognition of only “two sexes, male and female,” defining sex strictly based on reproductive autonomy at birth, with distinction made between “large” or “small” reproductive cells (Executive Order 14168, § 2, 2025). While the order argues its logic and position to be “grounded in fundamental and incontrovertible reality,” critics have also contended it is a regression for gender-nonconforming individuals, with some accusing the administration of “weaponizing federal law against transgender people across the country.” At its core, the imposition of a binary definition of sex demonstrates the extent of federal power on civil rights: Where does federal power end in determining the basis of sex, especially when executive orders conflict with established legal precedents? 

Historically, legal protections for gender-nonconforming individuals emerged through federal authority’s court rulings. In the 1989 Supreme Court of the United States (SCOTUS) case Price Waterhouse v. Hopkins, Ann Hopkins was denied a promotion due to a lack of display of stereotypical feminine behaviors, such as “walking more femininely, talking more femininely, dressing more femininely (618 F. Supp. at 1117).” She sued her employer under Title VII of the Civil Rights Act of 1964, claiming the employer’s actions constituted discrimination. Although the district court and the court of appeals disagreed on the burden of proof, they both ruled in Hopkins’ favor, and ultimately, SCOTUS affirmed the lower courts’ decision. SCOTUS ruled that the employer’s actions amounted to discrimination based on “sex stereotyping,” a form of sex discrimination under Title VII (Pp. 490 U.S. 255-258). In this case, SCOTUS expanded its interpretation of “sex discrimination” to include the discrimination against gender nonconformity, signaling that discrimination for failing to meet traditional gender norms is a violation of civil rights., While the court did not specifically address protections for sexual orientation, its decision laid the foundation for later rulings that expanded on the definition of sex discrimination. 

Specifically, the same principle was reinforced in the 2020 Bostock v. Clayton County decision, where SCOTUS held that discrimination based on gender identity or sexual orientation “violates Title VII” of the Civil Rights Act (Pp. 4–33). In its reasoning, SCOTUS deemed the discrimination to be “because of sex,” since it is impossible to take action against an individual for being gay or transgender without considering their sex. Through its interpretation, Title VII’s prohibition on sex-based discrimination was extended to include cases involving “sexual orientation and transgender status.” In doing so, SCOTUS broadened protections for individuals whose gender identity does not conform to traditional norms, building on the precedent set in Price Waterhouse. The continuity from the 1980s to 2020 highlights the federal government’s role in determining the legal definition of sex, demonstrating how the courts have used federal power to expand civil rights and challenge exclusionary gender conventions.

Yet, the recent executive order seems to erase such a precedent, shifting the use of federal authority to reduce opportunities for gender-nonconforming individuals. For example, Executive Order 14190, signed on January 29, 2025, calls for the elimination of “federal funding or support for illegal and discriminatory treatment and indoctrination in K-12 schools, including [those] based on gender ideology.” The order highlights such actions to include “modifying a person’s name or pronouns,” the “use of intimate facilities and accommodations such as bathrooms or locker rooms,” and more (Executive Order 14190, § 2-3, 2025). More recently, on March 7, 2025, the Trump administration released Executive Order 14235, which further restricts public service loan forgiveness and includes provisions targeting organizations that carry “substantial illegal purpose,” which the order defines to include the “trafficking of children to so-called transgender sanctuary States” (Executive Order 14235, § 2, 2025). Both executive orders demonstrate the administration’s commitment to limiting the recognition of sex beyond the binary and its reprimand for what it deems to be “radical gender ideology” in Executive Order 14190. In the past, federal protections have been used to ensure equal access to educational opportunities for transgender individuals. However, the Trump administration, by conditioning federal funding on a school’s refusal to acknowledge gender identity, put pressure on institutions to deny recognition of transgender and non-binary identities. This action contradicts the legal frameworks that federal power has used to protect civil rights. One example is the Department of Education’s interpretation of Title IX, which extended protections to the civil rights of transgender students and their rights to an education free from discrimination. 

Supporters of the Trump administration argue that “sex” and “gender,” two concepts used interchangeably in law, should be distinguished as the administration suggests. For example, Justice Alito points out that discrimination based on sexual orientation and gender identity is unrelated to discrimination of biological sex: “In cases involving discrimination based on sexual orientation or gender identity, the grounds for the employer’s decision – that individuals should be sexually attracted only to persons of the opposite biological sex or should identify with their biological sex – apply equally to men and women.” Bostock, 590 U.S. at ___, at 19 (Alito J., dissenting). The executive order itself further emphasizes the same difference, explicitly stating that “‘sex’ is not a synonym for and does not include the concept of ‘gender identity’” (Executive Order 14168, § 2 (a) (f) (g), 2025). As a result, for many, this executive order exemplifies a return to the law’s original intent by limiting the definition of “sex” to strictly biological sex, rather than overstepping the biological definition with a social construct. Returning to the discussion of the tension between federal authority and civil rights protections, such support indicates some recognition of the federal government, its responsibility, and its legitimacy to interpret and define the boundaries of civil rights.

Excluding whether this form of categorization is legal, it is essential to consider how deep the legal influence of the executive orders extends. For example, in the 2025 legal case Ames v. Ohio Department of Youth Services, the court’s ruling remains pending for Ames, a former homosexual employee at the Ohio Department of Youth Services, who alleged that she was demoted due to sex discrimination by her gay employers. This court ruling began on February 26, 2025, just one month after the issuance of Executive Order 14190. As federal agencies are now mandated to recognize only binary biological sex, and given that district courts are part of the federal system, such outcomes raise the question. Just because there is a prioritization of binary sexes at the federal level does not necessarily mean there is a lack of respect for gender nonconformity. Despite the shift in federal policies, this case is still pending, suggesting that the rights of nonconforming individuals are still being upheld in specific scenarios. Such an interpretation might suggest that while the federal authority is important, it does not always dictate the outcome in courts, and the application of civil rights protections is still subject to the courts’ interpretations. However, simultaneously, it can be argued that the pending status of the case demonstrates how federal power makes civil rights more challenging to protect. Given the new administration’s definition and distinction of “sex” and “gender,” many law firms warn of a likely decrease in “investigations and legal interventions in connection with discrimination based on sexual orientation and gender identity.” As gender identity protections become more contested in the legal system, all individuals will face greater resistance in challenging discrimination based on sex. Ultimately, it seems that federal power continues to overrule and dictate all forms of definition of civil rights.

Or does it? 

Given the early stages of Trump’s administration and the progression of its new policies, it is necessary to question the boundaries of federal power. Where does the federal power begin and end? In its definitions? In representation or misrepresentation? Or, worse, in erasure? In the midst of what some argue to be the “[erasure of] transgender people’s contributions to modern society” and what others proclaim as a “turn back toward reality and common sense,” where do we draw the line? Perhaps the best way is from our very own identity, on the basis of sex. 

By Qizhen (Kiara) Ba

Edited by Victor Tong 

Section III: The Trump Administration’s War on Diversity, Equity, and Inclusion Policy

Diversity, equity, and inclusion initiatives within the federal government aimed to create an environment that is more open and welcoming to those who have been systematically oppressed in the United States. DEI is interpreted by many as giving an unfair advantage to minority groups within the private sector. For example, in Digitaldesk Inc. and R. Greg Gomm v. Bexar County and Liftfund Inc., plaintiffs brought legal action against a local San Antonio government policy program for implementing a scoring methodology that gave certain preferences based on race and gender identity. The federal government's implementation of DEI initiatives in the public sector can often be interpreted as a form of reparations for groups that have been historically disadvantaged. According to the Equal Employment Opportunity Commission (EEOC), DEI is a broad term not defined within Title VII of the Civil Rights Act of 1964. However, the vagueness of President Trump’s executive order against federal DEI provide for potential violations of the 1st and 5th amendments of the United States Constitution, Title VII of the Civil Rights act of 1964, which protects people from unequal legal implementation and protections under constitutional and federal law as well as other anti discriminatory acts such as the Fair Housing Act of 1968. Amongst a constantly shifting legal landscape under the Trump Administration, anti-discrimination law precedents and protections could be heavily scrutinized.

Historically, integrating diversity, equity, and inclusion initiatives within the federal government and its various agencies has substantial legal backing. The landmark case of Regents of the University of California v. Bakke established by a majority in the Burger court that the use of racial quotas and race in general in admissions decisions in higher education does not violate the Equal Protection Clause of the Fourteenth Amendment. Allan Bakke, a white male, had applied twice for admission to the UC Davis Medical School and was rejected both times. The Medical School has set up a quota system to admit 16 minority students to the program. With this knowledge, Bakke brought the case to court, claiming a violation of the Equal Protection Clause of the Fourteenth Amendment, arguing that he was more qualified based on his test scores and GPA than the students admitted under the quota. The court was split on this case, with four judges dissenting and claiming that the quota system violated the Equal Protection Clause. This was the first case challenging the Civil Rights Act of 1964 that attempted to weaponize equal protection clauses against white Americans, claiming a narrative of “anti-white racism” within programs that attempt to achieve more equitable outcomes. The consensus surrounded the approval of race in admissions criteria, as one of several factors, effectively extending gains for racial minorities through affirmative action. Regents of the University of California v. Bakke set a precedent for the more recent case of Grutter v. Bollinger. Within Grutter v. Bollinger, a legal precedent for affirmative action was firmly established. The four dissenting judges in the case sided with Barbara Grutter, the white plaintiff who, similarly to Bakke, was refused admission to the University of Michigan Law School and brought her case before the court to challenge the alleged discriminatory intent. They stated that the Law School’s use of race was unconstitutional, and that three of them specifically cited the lack of compelling evidence in the admissions team’s claimed interest in “student body diversity.” This was considered to be one of the first legal “diversity, equity, and inclusion” initiatives within the federal court. The rejection of Grutter and the use of race in admissions was upheld, as the court saw that using race as an admissions factor did not result in rejection or acceptance. Thus, using race in admissions to obtain educational benefits from a more diverse student body does not violate the Equal Protection Clause. The University of Michigan and other higher education institutions followed suit, as the court decision established explicitly that they could “consider race as one of many factors in the context of an individualized consideration of all applicants can pass constitutional muster”. Besides the Equal Protection Clause, many other constitutional amendments provide legal and righteous grounds for establishing inclusive and equitable rights for all American citizens. Affirmative action was approved through the American legal system as a way for historically oppressed minorities to gain access to higher education, without effectively making radical systemic change.  

The Trump Administration's executive orders attempting to rid the federal government of all DEI programs are currently being challenged as unconstitutional due to violation of 1st Amendment rights and 5th Amendment rights. The 1st Amendment enforces every citizen's right to free speech and expression for all persons. The 5th Amendment establishes every American’s right to a fair and efficient trial and the due process of law within cases threatening the deprivation of life, liberty, and property. Each of these acts and amendments effectively fosters inclusivity and equity within their supposed legal application. As President Trump’s executive orders took effect, several district courts acted as one of the only barriers to these orders by objecting and using preliminary injunctions, which preserve past precedent before a proper court proceeding. The Federal district court for the District of Maryland within the National Association of Diversity Officers in Higher Education, et al. v. Donald J. Trump effectively denied these orders as the striking down of DEI policy is “in fact antithetical to federal anti-discrimination law”. The vague nature of President Trump’s executive orders was cited as dangerous, as they provided room for vast and discriminatory misappropriations of the written words. For instance, the executive order demands the termination of all “equity-related” grants or contracts. Trump himself never defined what would be considered “equity” in itself, providing ample room for broad applications. Thus, an increased danger of discriminatory enforcement and due process is imminent.

Furthermore, President Trump’s orders could be scrutinized for unconstitutional viewpoint discrimination. For instance, the case cited the awarding of federal grants on behalf of the Trump administration’s ideological lean as just one example of the consequences of the orders. Under this order, Trump can exercise the Civil Rights Act of 1964 as his administration sees fit. Thus, the legal turmoil that these executive orders created provided grounds for a preliminary injunction. The preliminary injunction explained why and how the executive order is undergoing a partial rejection and in-depth review due to its constitutional contradictions, vague wording, and potentially dangerous application. The Trump Administration's new executive order poses risks regarding anti-discrimination court rulings and court precedent. According to experts at Holland & Knight, the provisions in the executive order fail to provide clear guidelines for interpreting them. Under the Fifth Amendment, individuals subject to laws that impose penalties have a due process right to clarity, so they “know what is required of them so they may act accordingly.” Without clear guidance in the law, those in power can enforce the law arbitrarily and capriciously. For instance, the Fair Housing Act of 1968, as well as the future of the accessible and affordable housing industry, is under attack under this executive order. The source provides input on the dangers of how the executive order is applied and its potential to affect discrimination in the American housing market. The YWCA of Northeastern New York houses about 110 people through two programs funded directly by the Department of Housing and Urban Development. These housing complexes offer trans-inclusive housing options, so potentially, all the funding, along with housing for 70 families, could be at risk under Trump’s executive order. This example illustrates the legal landscape facing thousands of families at risk of eviction or homelessness under the broad application of such orders. Under the current administration, it is up to the courts to protect the constitutional rights of American Citizens in cases such as these. It is important to emphasize that the executive order does not revoke, amend, or alter any written acts or laws, but its application can set specific precedents going forward. Specifically, this executive order affects government agencies, which can in turn, broadly apply and directly contradict constitutional law and specific civil rights acts.

Once the preliminary injunction ends and the court makes a finalized decision, a wide array of risks for minority groups could be at play. The most pressing legal question to ask is how broadly this executive order will be applied. It remains unclear what the Trump Administration defines explicitly as “Diversity, Equity, and Inclusion”. By legal precedent that supports DEI law, DEI initiatives that are legally protected are not necessarily a radical change in the public and private sectors, but rather a gradual leveling of the professional landscape. 

By Jane Bryant

Edited by Victor Tong