The Trump administration continues to be at the vicious forefront of anti-trans reaction, recently moving to remove Obama era protections for transgender and intersex prisoners. According to a recent Justice Department memo, certain parts of the Prison Rape Elimination Act (PREA) conflict with Trump’s anti-trans executive orders, particularly “Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government.” This executive order, with its rhetoric around defending women’s rights, “sex-based opportunities,” and “the immutable biological reality of sex,” reads directly out of the TERF playbook. This, as well as the removal of the already flawed Obama era protections, is another wave in the increasing attacks against transgender and intersex people. 2025 saw the most anti-trans legislation passed in U.S. history, both in terms of total bills considered and those passed into law, based in a long history of settler-colonial attacks against indigenous cultures and their systems of sex and gender.
Problems with the Obama Era Reforms
While the protections added to PREA under Obama in 2012 were a progressive step in confronting sexual violence against transgender, intersex, and queer people in prison, they were not a liberatory document. Their roots in a prison system built on settler-colonialism, imperialism, and slavery meant they could not break free of the oppressive colonial sex/gender binary, leading to two main issues in the act: transmedicalism and the erasure of non-binary and non-Western gender identities. This is evident in the opening section of the document, which is a list of definitions; there are three relevant entries.
“Gender nonconforming means a person whose appearance or manner does not conform to traditional societal gender expectations.”
“Intersex means a person whose sexual or reproductive anatomy or chromosomal pattern does not seem to fit typical definitions of male or female. Intersex medical conditions are sometimes referred to as disorders of sex development.”
“Transgender means a person whose gender identity (i.e., internal sense of feeling male or female) is different from the person’s assigned sex at birth.”
Already in the first definition we can see an issue: gender non-conforming is a term that can only be understood relative to specific gendered social relations. What is meant by “traditional societal gender expectations” is the European sex/gender binary developed inseparably from colonialism, imperialism, and white supremacy. This binary goes completely unquestioned throughout the document while also informing its definitions and procedures, and it is exactly this unquestioned acceptance that is the root of the other issue with this document: the pathologization of transgender and intersex people. First, through defining intersex traits as “disorders of sex development,” a logic of pathology. While there are intersex traits that people seek to change through medical intervention, that comes not from their being born pathological but from their right to bodily autonomy. This logic of pathology is hidden in the definition of transgender too, defining it as someone who feels the “opposite” sex internally. Firstly, this definition erases non-binary gender identities and gender identities that exist outside the Western binary. It also implies that all transgender people by definition desire to medically transition from male to female or female to male, a transmedicalist idea which restricts access to medical care based on one’s ability to pass and perform Western gender roles. (Jules Gill-Peterson detailed in an essay the lengths it took to get access to gender-affirming care in New England in the 1970s.) The flaws with this document show us that a return to liberalism is not enough because it is the colonial logic of a sex/gender binary that underlies both the protections themselves and the current attacks against them.
The Trump Administration’s TERFism
Three anti-trans executive orders were released on day one of Trump’s term, leaving no doubts about whether the anti-trans agenda from his campaign would be only rhetoric. The three Presidential Actions covered the basic “common sense biology” that is used to justify their binary definitions of sex and gender, meaning that intersex and transgender people do not exist. They get surprisingly philosophical (not in substance) with their language, arguing that “immutable biological reality of sex with an internal, fluid, and subjective sense of self unmoored from biological facts. Invalidating the true and biological category of ‘woman’ improperly transforms laws and policies designed to protect sex-based opportunities into laws and policies that undermine them, replacing longstanding, cherished legal rights and values with an identity-based, inchoate social concept.” In the other orders they argue that gender-affirming care for minors amounts to castration and mutilation and force their definitions of sex and gender in schools, erasing trans, intersex, and LGBTQ+ people more broadly from education. Between this and the Obama era definitions, there is really only one real disagreement: that someone can have an “internal sense of feeling male or female” regardless of their assigned sex. This is already a watering down of what it means to be transgender, an inherently unstable definition given that it roots being transgender in “feeling male or female,” an idea that in practice means trans people must constantly prove themselves as real and views passing and medical transition as necessities for all transgender people. Given that transgender people do not conform to this definition, its limits were bound to be pushed, and it inevitably collapsed into the modern transphobic politics we see in the White House today.
The Colonial Roots of the United States’ Sex/Gender Binary
Marxist writers Leslie Feinberg and Eleanor Leacock both wrote about gender relations in the era of European settler-colonialism in the Americas (North and South). Leacock’s work in particular is referenced in a passage from Marxism and Transgender Liberation describing the effect of colonization on the status of women.
“The case of the Montagnais (Innu) residing in Nitassinan (eastern Quebec and Labrador in Canada) is instructive. From the mid-sixteenth century, permanent French trading posts were established along the St. Lawrence Valley. Paul Le Jeune, a Jesuit missionary who lived with the Montagnais in the early seventeenth century, described how the women held ‘great power’ and had ‘in nearly every instance . . . the choice of plans, of undertakings, of journeys, of winterings.’ When circumstance required it, Montagnais women hunted, and men looked after children. The Jesuits were tasked with converting the Montagnais not only to Christianity, but also to monogamy and patriarchy. After a decade of colonial missionary activity and trading relations, the Montagnais had begun to institutionalize a male chiefly authority who traded with the Europeans, as well as violence against wives and children.”
Feinberg discussed gender identities that existed outside of the Western sex/gender binary in their book Lavender and Red, particularly the gender identities and practices of indigenous people in North America.
“He [a Museum of the American Indian curator] said he came across references to these berdache [a colonial term for indigenous people who did not conform to the Western sex/gender binary, often used regardless of cultural or identity distinctions] practically every day in his reading. I asked him what the word meant. He said he thought it meant transvestite or transsexual in modern English. He remarked that Native peoples didn’t seem to abhor them the way ‘we’ did. In fact, he added, it appeared that such individuals were held in high esteem by Native nations. Then his voice dropped low. ‘It’s really quite disturbing, isn’t it?’ he whispered. I hung up the phone and raced to the library. I had found the first key to a vault containing information I’d looked for all my life.
‘Strange country this,’ a white man wrote in 1850 about the Crow nation of North America, ‘where males assume the dress and perform the duties of females, while women turn men and mate with their own sex!’ I found hundreds and hundreds of similar references, such as those in Jonathan Ned Katz’s groundbreaking Gay American History: Lesbians and Gay Men in the U.S.A., published in 1976, which provided me with additional valuable research. The quotes were anything but objective. Some were statements by murderously hostile colonial generals, others by the anthropologists and missionaries who followed in their bloody wake. Some only referred to what today might be called male-to-female expression. ‘In nearly every part of the continent,’ Westermarck concluded in 1917, ‘there seem to have been, since ancient times, men dressing themselves in the clothes and performing the functions of women…'”
In our contemporary era of imperialism and neo-colonialism, the reactionary patriarchal sex binary of European colonists still drives colonial policy. For example, the Trump administration just decided that gender-affirming care for minors will be reported as a human rights abuse by the U.S., continuing a long history of weaponizing human rights to justify imperialism. This also comes as a response to the growing strength of transgender rights in the periphery, for example in Cuba, which undermines the myth of Western moral superiority and shows transgender people in the imperial core that liberalism is not the only political choice for them and that socialist revolution and development is possible.
We have to understand this policy not only as an attack against transgender people, but as an attack against the sovereignty of the Global South, whose nations have the right to self-determination including in the area of sex and gender. For example, Western sports organizations like World Athletics (formerly IAAF) push the Western sex/gender binary onto athletes from the Global South. One such instance of this is the barring of South African runner Caster Semenya from competition, as another passage from Marxism and Transgender Liberation describes.
“In 2009, during what she was told was a doping test, Semenya was subjected to ‘sex testing’ by the IAAF, and was reportedly diagnosed with an intersex condition. Press coverage was shaped by the reflexive societal desire to police the hard sex/gender binary, and by general ignorance about what it means to be intersex: Time Magazine asked ‘Could this Woman’s World Champ Be a Man?’ More recently, IAAF board member José María Odriozol referred to Semenya as ‘biologically a man.’ Capitulating to the media frenzy, in August 2019 the IAAF reversed an initial decision to clear Semenya, and she was barred from the World Athletics Championships in Doha, as well as from any future events unless she submits to testosterone-reducing hormone treatments.”
Liberals will use pink-washing to argue against the right to self-determination, saying that the formerly colonized are too backwards and that the queer community must be “freed” through military intervention and sanctions. But as historical materialists we know that development can only proceed from sovereignty. It is socialist nations, for example, where both transgender and women’s liberation has been developed to its greatest extent, and this includes development in sexual and gendered social relations. Our liberation, whether as colonized nations, as workers, or as transgender people, is not found in the oppression of others, but in fighting the shared class enemy of imperialism.