Can Donald Trump ban trans rights?

Recent statements from President-elect Donald Trump at a conservative conference in Arizona have ignited concerns among LGBTQ+ advocates as he pledged to make sweeping changes to transgender rights and protections on his first day in office, including banning transgender individuals from schools and military service.

The landscape of transgender rights in America has evolved dramatically since the 1960s, when the first legal recognitions primarily focused on basic documentation like name changes. The most significant expansion occurred during the Obama administration, which implemented several protective measures. In 2012, the Department of Health and Human Services extended the Affordable Care Act’s protections to prevent healthcare discrimination based on gender identity. By 2016, Obama’s administration required public schools to accommodate transgender students’ bathroom use and preferred names. The military ban on transgender service members was also lifted during this period, allowing open service.

This progress saw a dramatic reversal under Trump’s first term, when his administration banned transgender individuals from military service, reversed healthcare protections, and withdrew guidance protecting transgender students in schools. President Biden subsequently reversed these policies, reinstating healthcare protections and allowing transgender individuals to serve openly in the military. This back-and-forth illustrates how vulnerable these rights are to executive action.

The legal and constitutional hurdles to Trump’s anti-trans agenda

The short answer is that Trump cannot unilaterally “ban” transgender rights, though he could significantly impact them through executive action. Several key protections for transgender individuals are grounded in Supreme Court precedent. In 2020, the landmark case R.G. & G.R. Harris Funeral Homes Inc. v. EEOC established that discrimination against transgender individuals violates Title VII of the Civil Rights Act, which prohibits employment discrimination based on sex. This interpretation means employers cannot fire or discriminate against employees for being transgender. Only a new Supreme Court decision or congressional legislation could override this protection.

However, Trump could substantially affect transgender rights through executive orders and agency directives. He could reinstate the military ban, as he did in his first term. He could direct federal agencies to interpret existing laws narrowly and withdraw guidance protecting transgender students. His administration could also rewrite regulations implementing federal civil rights laws to exclude gender identity protections where the underlying statute doesn’t explicitly mention it.

The impact would vary significantly by state. Since 2021, many states have passed increasingly restrictive legislation targeting transgender individuals. Arkansas’s SAFE Act, for instance, criminalized gender-affirming care despite the governor’s veto, and similar laws have spread across multiple states. These laws restrict healthcare access, require schools to report students’ gender identity to parents, and limit public facility access based on birth-assigned sex.

Meanwhile, states like California, New York, and Washington have implemented comprehensive protections, including insurance coverage for gender-affirming care, conversion therapy bans, and anti-discrimination measures. Federal policy cannot override these state-level protections, creating a patchwork of rights that varies dramatically by location.

The reality is that while Trump could significantly impact transgender rights through executive action, constitutional checks and balances, existing court precedents, and the federal system’s structure would prevent him from implementing a complete “ban.” The more likely outcome would be an acceleration of the current crisis, where access to rights and protections depends heavily on geographic location, creating an increasingly divided landscape for transgender Americans.