Trump Administration proposes barring federal agencies, federally funded organizations from promoting “gender ideology”

By Jane Migliara Brigham and Artemis T. Douglas

Today, May 29, the Trump Administration proposed a rule banning any federal agencies and organizations which accept money from the federal government from “promoting gender ideology”, or lose their funding. The rule is subject to a public comment period ending on July 13, after which the administration can choose to implement it.

Their definition of gender ideology is the same used in Trump’s Executive Order on the topic. The proposal says this would include “theories or ideologies that deny the biological reality of sex or the sex binary in humans, or endorse or advocate for the notion that sex is a chosen or mutable characteristic”.

If that sounds vague, that’s because it is. 

This is an order from the federal government to all federally funded groups to remove any mention of trans people or the fact that it is possible to change your sex from public view. The details of what that will mean in practice have yet to be determined.

It goes on to mandate that any entity getting federal funding ensure that the money not be used to “fund, promote, encourage, subsidize, or facilitate” the medical transition of anyone “under 19 years of age”. 

This appears to be a further attempt to enforce the administration’s goal of making youth transition impossible.

As for how the government intends to enforce their ‘gender ideology’ ban, they mention that they do not intend to enforce the anti-discrimination protections for trans people demanded by Bostock. 

The proposed rule calls those anti-discrimination protections a “misapplication of the Supreme Court's decision”, and calls on covered entities to reinterpret it so as to “assist agencies in protecting sex-based distinctions.” It even floats the idea of providing recipients of federal money with “additional guidance… regarding the Supreme Court's decision”, so as to reduce enforcement of preexisting anti-discrimination policies.

This isn’t only an assault on trans people. The same guidance and proposed rules attack what the administration calls “DEI policies” and in turn casts them as being “inconsistent with basic American values and civil rights laws, including the equal protection principles of the U.S. Constitution.”

As for government monitoring of funds, the proposed rule asserts that the government has the right to “recover misused funds or terminate awards based on noncompliance”. This, combined with the practice of self-censorship to avoid the ire of the government, is how the rule would be enforced in practice.

This proposal to ban ‘gender ideology’ (among other things) is the most comprehensive such attempt to be floated. It directly threatens the funding of any organization which does not comply, creating a pressure to enforce these rules which was not present before.

Not content to only apply to direct recipients of federal money, the covered entities under this rule also include organizations which are in any way funded by federally funded entities, organizations funded by those organizations, and so on.

This is key, as nearly all non-profit and civil society groups are engaged in a trail of money which at some point leads back to the federal government.

In concrete terms, federal dollars touch nearly every social and civil society organization, as well as many employers, from non-profits to small businesses and up. By including any subgrant recipients in this rule, it effectively makes funds across nearly the entire fabric of US society conditional upon complying with the administration’s views on trans people. 

If any amount of money can be traced back to the federal government, these new restrictions would be applied.

As Samantha Boucher of Trans Liberty PAC explains, “The way the language is written, it unequivocally will affect any grant recipient who receives a grant at any point down the chain where an organization at a higher level received federal money.”

These constraints will also put pressure on state and local governments, particularly Blue State governments, into aggressive compliance with the Trump Administration’s assault on trans people’s safety and security.

For states and cities which have protective statutes on the books, it gets much harder. They are forced to choose between following their own laws, or receiving the funds they need for critical human needs. 

In short, the dollars funding critical services would have a set of strings preventing them from erasing trans people and others. In institutions that don’t care to protect the vulnerable, compliance would be the path of least resistance.