Oklahoma gave Coloradans reason to regret sharing a border with them this week, as the state’s governor, Kevin Stitt, passed the inappropriately named “Women’s Bill of Rights” as an executive order, according to NBC News. “Today we’re taking a stand against this out-of-control gender ideology that is eroding the very foundation of our society,” Stitt says as he signed the order while flanked by members of hate group Independent Women’s Voice. “We are going to be safeguarding the very essence of what it means to be a woman.” He went on to say, “Oklahomans are fed up with attempts to confuse the word ‘woman’ and turn it into some kind of ambiguous definition that harms real women.”
According to NBC, the executive order defines “male” and “female,” amongst other terms, based on one’s sex assigned at birth. Female is specifically defined as a “person whose biological reproductive system is designed to produce ova” and male as a “person whose biological reproductive system is designed to fertilize the ova of a female.” Thus, the entire executive order essentially legislates transgender people out of existence. That is, if the law has any legal basis to stand on.
According to KJRH in Oklahoma, similar language was introduced in bills SB 408 and HB 1449 in the Senate and House, respectively, but neither of them made it into law. And thus, Stitt simply enacted similar language by executive order. But it’s unclear if he has the authority to do that.
Executive orders are orders passed by the executive branch of a government that have the force of law but aren’t actually legislation because they do not go through the normal legislative process. According to CNN—which, admittedly, was talking about federal executive orders—executive orders are legally binding but are supposed to be more limited in scope than actual laws. According to NPR—which, again, was speaking about federal executive orders—there’s not really any authorization to use them in the Constitution, so their authority lies in a rather fuzzy gray area, but they’re generally upheld by courts.
It’s unclear if the Oklahoma State Constitution gives the governor more explicit executive power than the U.S. Constitution gives the President, but allowing the governor to issue laws unilaterally would be deeply undemocratic. It’s almost certain that a law passed by executive order—if one can even pass a law by such a means—would not carry the same weight as the bills they attempted to pass as legislation would have had if they had passed. Otherwise, the entire legislative process would be meaningless. That means that the order might be particularly vulnerable to a court challenge, should anyone find the courage to challenge it.
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