Biden's transgender policy was wrong, but Trump’s overcorrection creates new problems
Among the flurry of executive orders President Trump issued during his first week in office was one titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” According to this order, “‘sex’ shall refer to an individual's immutable biological classification as either male or female … and does not include the concept of 'gender identity.’”
Section four of the executive order, “Privacy in Intimate Spaces,” applies this understanding of sex to the housing of prisoners: “The Attorney General and Secretary of Homeland Security shall ensure that males are not detained in women's prisons or housed in women's detention centers.”
At first glance, this seems like what should be bipartisan common sense.
But in response to a lawsuit from three males identifying as transgender women who are currently housed in women’s prisons, U.S. District Judge Royce Lambert, a Ronald Reagan appointee, ruled that Trump’s executive order as it applies to the housing and medical treatment of transgender prisoners likely contains constitutional violations. Lambert blocked the enforcement of these provisions within the executive order, arguing that the dangers posed to transgender women housed in men’s prisons could constitute cruel and unusual punishment.
Given the unique dangers posed to individuals who appear to be women, were they to be housed in men’s prisons, Lambert’s concerns also seem eminently reasonable.
It seems this is one more entry in a long list of complicated issues where two things are in fact true at once.
Yes, allowing so-called gender identity to presumptively replace biological sex as the conclusive factor in determining where to house a given prisoner is unconscionable. The Biden administration’s capitulation to ideological nonsense in permitting such a charade as men identifying as women in order to gain access to women in prison victimized female inmates.
Also, transgender women inmates are vastly overrepresented among sex offenders. Allowing them into female private spaces was both morally repugnant and intellectually indefensible.
Still, per Lambert’s ruling, the executive order as written could cause serious harm to certain inmates. There are individuals in prison who are male but genuinely pass for female. Some have had top and bottom surgeries that greatly mitigate the risk of their residence in women’s prisons — and greatly increase the risk to them of their residence in men’s ones.
Such people existed, albeit in smaller numbers, long before the left commenced its mass indoctrination in gender ideology. The right should not now make them sacrificial lambs in a necessary reinstitution of reality.
Of course, the best way to avoid overcorrection in reinstituting a given reality is not to deny it in the first place.
If the Biden administration had not defied both precedent and common sense by allowing men to self-identify their way into women’s prisons (not to mention bathrooms, sports teams and so on within the general public), the Trump administration would not now be painting with a brush that is so broad as to be callous in righting that wrong.
Extremism, right or left, almost inevitably breeds backlash. If the uniform lack of nuance in takes on this executive order, right and left, are any indication, we have yet to learn this basic lesson.
Elizabeth Grace Matthew writes about books, education and culture, including on Substack.
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