Author: Grace DeBoer

On January 20th, 2025, President Trump issued Executive Order 14168, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”. With this executive order, Trump has made it the policy of the United States to recognize only two sexes, male and female. On February 19th, 2025, the U.S. Department of Health and Human Services took action to support this executive order and provided a list of definitions the federal government must use regarding sex-based legislation and policy. HHS guidance now defines sex as “a person’s immutable biological classification as either male or female”, a female as “of the sex characterized by a reproductive system with the biological function of producing eggs (ova),” and a male as “a person of the sex characterized by a reproductive system with the biological function of producing sperm.” 

Trump intends for this executive order and associated policy changes within HHS and other areas of the federal government to restrict ideas of fluid sex and gender expression that were embraced by the prior administration. Theexecutive order states, “This unhealthy road is paved by an ongoing and purposeful attack against the ordinary and longstanding use and understanding of biological and scientific terms, replacing the immutable biological reality of sex with an internal, fluid, and subjective sense of self unmoored from biological facts.” However, this executive order may be further from biological reality than the Trump administration asserts. District Judge Ana Reyes recently questioned Trump’s legal team regarding the order and its effect on transgender people serving in the military, arguing that the order fails to acknowledge that some people are born intersex due to various biological differences in their chromosomes, hormone expression, and hormone metabolism. On this point, Trump’s lawyers admitted they lacked knowledge of how chromosomes can differ among individuals and struggled to answer questions on the motive behind the executive order.

Judge Reyes’ criticism of the order highlights the main issues of Trump’s order not only from a medical and biological perspective but also from a policy perspective. First, the order does not make any mention of naturally occurring conditions that would put someone outside the male/female gender binary. Some individuals are born with chromosomes other than XY or XX, such as XXX (Trisomy X), XXY (Klinefelter Syndrome), or XO (Turner Syndrome). Some individuals may also have conditions that affect their ability to express or metabolize hormones including androgens and estrogens (such as congenital adrenal hyperplasia or complete androgen insensitivity syndrome), which then influences how their sex organs develop internally and externally. This wide range of biological differences provides scientific support to the idea that biological sex naturally falls along a spectrum rather than being solely restricted to two options. 

Second, Trump’s attempt to make policies in the name of biological facts that are not based on real medical science may create more problems than it solves. Judge Reyes highlighted the issues this executive order creates with the ability of transgender people to serve our country in the military, but the order will likely affect the ability of transgender and intersex people to participate in competitive sports and will cause problems for female transgender prisoners who will now need to be moved from women’s prisons to male prisons. Although transgender and intersex individuals make up a small portion of athletes or prisoners, these changes will cause a significant disturbance in their lives and send a message to all Americans who fall outside the male/female gender binary that the government has no interest in acknowledging the struggles they face that stem from sex and gender identity. This decision sets a dangerous precedent in federal policymaking that the current administration will commandeer science in order to engrain conservative ideals into society. This strategy may also be used to tackle other controversial health law issues, such as hindering federal approval for certain vaccines. Although this executive order is already facing numerous legal challenges with several different plaintiffs moving for preliminary injunctions, the decision to use science as a guise to pursue cultural change is a bold step during Trump’s first several months in office this term.

On Thursday, September 26th, Alan Eugene Miller was put to death in Alabama by nitrogen gas asphyxiation. Nitrogen is a physiologically inert gas, meaning that it has no toxic or anesthetic properties. When inhaled, nitrogen dilutes the concentration of oxygen in the blood to dangerously low levels. This deprives cells in the body of oxygen, which ultimately leads to unconsciousness and death. Nitrogen gas asphyxiation, which involves inhaling pure nitrogen gas through a respirator mask, was recently authorized as a method of capital punishment by Alabama in 2018 due to a shortage of lethal injection drugs. Miller is the second person ever to have been executed by nitrogen gas asphyxiation; this method was used for the first time in the world when Alabama executed Kenneth Eugene Smith in January of this year.

Nitrogen gas asphyxiation was intended to be a more humane or painless alternative to other forms of capital punishment such as lethal injection, but eyewitness accounts of Miller and Smith’s executions have cast doubt over this theory. During the executions of both Miller and Smith, they thrashed and convulsed violently on the gurney for the first several minutes of the execution and spent several additional minutes gasping for air before they finally stopped breathing. It took approximately 22 minutes for Smith to stop breathing after he began to inhale the nitrogen gas, and witnesses were reportedly “alarmed” by the ordeal. A reporter for the Associated Press who had been present for most executions in Alabama stated Smith’s reaction to the nitrogen gas asphyxiation was “not typical for what you see in a normal execution.”

The recent implementation of nitrogen gas asphyxiation as a novel form of capital punishment has raised serious questions regarding cruel and unusual punishment and medical ethics. Prior to his execution, Smith’s legal team filed a brief in the U.S. District Court for the Middle District of Alabama Northern Division in an attempt to halt the execution using nitrogen gas, stating that this method would put him at severe risk of a persistent vegetative state, stroke, the painful sensation of suffocation, superadded pain, or other permanent injuries in violation of the Eighth Amendment should the execution end in failure. Following the execution of Smith, the use of nitrogen gas asphyxiation as a form of capital punishment was also condemned by the UN High Commissioner for Human Rights Volker Türk, citing “serious concerns this novel and untested method of suffocation by nitrogen gas may amount to torture, or cruel, inhuman or degrading treatment.” 

Additionally, Smith’s lawyers argued in their brief that certain procedures should be implemented to decrease the risk of failed nitrogen gas asphyxiation, such as having a medical provider present during the execution. However, the American Medical Association’s Code of Medical Ethics forbids physicians from participating in a legally authorized execution. Considering the alarming reaction exhibited during both Smith and Miller’s executions, it is concerning that improving the efficacy of nitrogen gas asphyxiation and reducing the risk of complications or superadded pain (and therefore mitigating potential violations of the Eighth Amendment) by having a physician present would be a direct violation of the code of ethics that physicians in the United States are required to follow. At this time, it is likely that this method of execution will continue to be used in Alabama as over 40 other death row inmates have selected nitrogen gas asphyxiation as their method of execution, and several other states have also authorized lethal gas as an execution method. Further investigation into Miller and Smith’s executions is necessary to shed light on whether this method complies with current medical ethics, human rights, and the Eighth Amendment.