Trump Proposes Rule Forcing Trans People To Misgender Themselves on Gun Purchase Forms 'Under Penalties of Perjury,' Could Result in Denied Sales

Under the proposed rule, trans people buying guns will be forced to choose between facing scrutiny over ID mismatches and being denied a sale or selecting their gender identity and committing perjury.

Image: The White House

This morning, the Trump administration’s Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) published a proposed rule titled “Selecting Biological Sex on ATF Forms.” As the rule’s title implies, it states that “individuals completing forms required by this part should select their biological sex” and applies to the federal forms Americans are required to fill out whenever they purchase firearms and explosives.

On its face, this move—which follows months of reporting surrounding internal DOJ discussions on a potential ban on trans gun ownership—doesn’t seem particularly concerning. After all, the Trump administration has already implemented similar requirements on other federal forms without much consequence, but unfortunately, the same cannot be said here. Right after the sentence requiring ‘biological sex’ on ATF forms, the rule inserts another clause: “each form shall be executed under penalties of perjury, if the form or the regulation so provide.” It must be noted that perjury is considered a felony offense and carries a 5-year prison sentence

The rule’s new provisions

According to the ATF, this change is being made for ‘consistency and clarity,’ as “a ‘penalties of perjury’ clause is already present in [27 CFR] § 479.21(a),” which regulates the form required when purchasing machine guns. However, that doesn’t provide the full context: all three regulations the rule will alter, 27 CFR § 478.21 (firearms), 27 CFR § 479.21 (machine guns), and 27 CFR § 555.21 (explosives), were proposed and finalized alongside each other in 1981. And even back then, the only one that included the ‘penalties of perjury’ clause was § 479.21. As such, it can be reasonably inferred that the omission of the clause was a deliberate drafting choice, and this view is further supported by the fact that these regulations have been simultaneously updated numerous times since then.

Clearly, every administration since Ronald Reagan has concluded the same thing: this perjury language is not necessary for the firearms and explosives forms. If it’s being added now, that can pretty much only be because the Trump administration is adding a requirement to the forms and wants to give itself the power to prosecute violations. And it just so happens that the only other thing the rule adds is the requirement that individuals select their ‘biological sex’ on forms.

Given the facts, the rule is likely intended to be at least a partial trans gun ban. To understand why, consider a scenario where a trans person wants to purchase a firearm. According to federal regulations, in order to do so, they must present an ID and complete the ATF form. This is straightforward for cis people, but under these new rules, it could get problematic for a trans person who has updated their ID—something that 40 states currently allow.

So, if they select their ‘biological sex’ as required by the rule, they may face scrutiny over the mismatch between the form and their updated ID. In many cases, this will almost certainly result in the person being denied the sale altogether, as firearms dealers are allowed to refuse sales if they suspect a person hasn’t completed the form accurately. Conversely, if they select their sex as it appears on their ID, they won’t face scrutiny at the counter but will have legally committed perjury. Should the federal government choose to investigate, this one action could result in a 5-year prison sentence.

And, as the Trump administration’s passport policy has shown, they can find out if they want to. The federal government, through past firearms transactions along with information stored by Social Security, the Selective Service, the State Department, the Department of Homeland Security, and other agencies, maintains a record of a person’s gender as it was first listed on official documents and considers that a person’s ‘biological sex.’ Of course, it goes without saying that consistently enforcing this—which requires checking every single person—would almost certainly be impermissibly expensive.

However, the risk isn’t 0. Because perjury has a statute of limitations of 5 years, prosecution over the ‘offense’ could occur at any point during the Trump presidency. For example, if a trans person who owns a firearm is arrested at a protest, law enforcement could then dig into their firearms purchases and charge them with perjury if their form didn’t reflect their ‘biological sex.’

Given this, it can be inferred that the ATF is likely banking on trans people complying with the new requirements and being scrutinized at the counter as a result. Because the government wouldn’t be the one denying firearms sales, it circumvents the Constitutional questions that a total ban on trans gun ownership would’ve presented—an idea that even drew opposition from the NRA when the DOJ discussions surrounding a trans gun ban were first reported in September.

The ATF will begin accepting public comments on the proposal starting tomorrow, which you’ll be able to submit on this page.