Elagabus, Ishtar, Anatasia, Loki, Shikhandi, Hwarang warriors, Galli priests. What comes to mind when you read those names and titles? Tom Hiddleston? Old ancient names that maybe a witch used? Well, if you guessed the ladder, you are partially correct. Those names and titles are ancient, with some stemming from creation myths as old as 6,000 years ago. You may be wondering why I am mentioning these old names and what they could possibly have to do with the law or freedom of expression. To help answer this question, I want to direct your attention to the USA.
Within his first month as president, Trump enacted a historic 108 executive actions. These orders ranged from officially erasing people’s identity to instructing the “heads of all executive departments and agencies” to somehow lower the price of goods. I will be focusing on the former, which concerns an executive order signed by Trump on his first day in office that declares “Federal funds shall not be used to promote gender ideology”. The “gender ideology” referenced is defined by Trump as any topic that concerns critical thought involving gender identity. The Order states it is a “false claim that males can identify as and thus become women and vice versa.” To put it in basic terms: Trump signed an order stating that transgender people are not legitimate and if any state says their identity is valid- federal funding will be withdrawn.
Unfortunately for Trump, transgender people have been around since the dawn of civilization.
A simple Google search of any of those names in the first sentence of the article will display that transgenderism has been a part of human identity throughout time and culture. Trump is trying to use his powers as the president to diminish all possible forms of transgender expression on both a federal and state level. Are Trump’s actions within the confines of the law? If people in the US want to express themselves in a way that does not harm or intimidate others but only involves changing their identity, then no law is broken. Despite this, Trump is still trying to stop this group of people from being recognized by the country. I will now lay out how the oppression of transgender voice is a violation of both the US Constitution and entire American legal system.
Trump claims to have an agenda of maximizing free speech and freedom of expression. He pushes this rhetoric alongside Elon Musk, the unelected head of the Department of Government Efficiency. This advocacy for free speech coincides with the First Amendment of the Constitution, which guarantees the right for all Americans to speak and express themselves without Governmental involvement. Despite Trump’s apparent advocacy for freedom of speech and expression, he has removed 350+ government webpages containing LGBTQIA+ policies, information, and resources. Trump’s action to essentially remove the recognition of a group of people stems far beyond taking down web pages.
Trump has now issued that all passports which display someone’s gender identity and not their sex at birth are now “suspended.” In the District Court of Massachusetts, a lawsuit is being filed by the ACLU (American Civil Liberties Union) on behalf of seven claimants for the violation of their 14th Amendment rights (the right to equal protection, privacy, and public life). This action comes with no surprise, as prohibitions by the federal government on basic identity documents is a jarring action in the 21st century. In addition to transgender people who have their chosen identity on the passport, an estimated 1.7% of the population that is born intersex also must adhere to this Order. Trump’s command to suspend all passports that do not fit to his agenda does not consider intersex people or those who have transitioned over 50 years ago. This lack of care and consideration for people that do not directly fit into his agenda opens the door for further discriminatory lawsuits brought by claimants who wish to freely express themselves within the law.
In addition to Constitutional violations, Trump is also disregarding precedent. The Executive Order Trump issued addressed an instrumental US Supreme Court decision. Bostock v. Clayton County (2020) set the precedent that under Title VII of the Civil Rights Act of 1964 transgender people cannot be discriminated against based on their identity. Trump’s Order wildly claims that the position the Supreme Court had taken is “legally untenable and has harmed women” and that the Attorney General must “issue guidance to agencies to correct the misapplication of the Supreme Court’s decision.” This is simply not how the US justice system works. The US operates on a structure of checks and balances, and the Executive has no authority to strike down any court decision- especially those of the Supreme Court. The case Cooper v. Aaron (1958) explicitly set the precedent that states and the federal government must comply with Supreme Court rulings.
Trump has again found himself in violation of several Constitutional Amendments and legal precedents. But who is standing up to Trump’s disregard for the law? Well, most have succumbed to Trump’s violation of rights as he threatens to take away federal funding from any state that does not comply. However, just on February 21st, the Governor of Maine, Janet Mills, had a powerful exchange of words with Trump at a White House business session with US Governors. Trump called her out for not complying with his Executive Order that prohibits transgender athletes from competing in sports. Her response to his callout? “See you in court.” The legal system in America is being tested by a man who seeks to avoid judicial checks on his power, and only time will tell how the strong the law stands when it comes to protecting those who wish to express themselves.
For now, Janet Mills and countless others who defy Trump’s oppression of transgender people through the legal system stand as a beacon of hope that law can protect and empower those on the margins of society. I encourage you to pay attention to how the law is being used to shield those who currently face oppression in the US, and to remember the power vested within you to protect yourself through the law.
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