ATF Rule Could Criminalize Transgender Gun Buyers
New ATF requirements could force transgender gun buyers to choose between outing themselves or facing criminal penalties.
A new rule from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives could effectively criminalize transgender people who attempt to buy firearms, raising concerns about their ability to exercise Second Amendment rights.
The move stems from an executive order by President Donald Trump declaring that the federal government will recognize only two sexes — male and female — based on biological anatomy at birth.
Under the change, all gun buyers would be required to list their sex assigned at birth on purchase paperwork, even if they have legally changed their gender or undergone gender confirmation surgery. That would force transgender people to either “out” themselves or risk lying on a government form — a crime punishable by up to five years in prison and a $250,000 fine, or up to 10 years if the lie is deemed “material” to the sale.
Even if a buyer truthfully lists their sex assigned at birth on the form — known as a Firearms Transaction Record, or ATF Form 4473 — they could still be accused of “lying” and prosecuted if their official ID reflects their gender identity rather than their assigned sex at birth, or if that designation does not match their current appearance or physical characteristics.
Intersex people, who are often born with ambiguous sex characteristics and assigned a legal sex that may not align with their gender identity or chromosomal makeup, could face a similar predicament.
Last year, the ATF confirmed to Eugene Weekly that it intended to update Form 4473 to require buyers to list their sex assigned at birth.
An ATF spokesperson, responding to questions from The Independent, said the agency is “updating and simplifying” Form 4473 to make it “more concise and user-friendly,” including “appropriate changes” to comply with Trump’s order. The order requires all federal forms to ask only about a person’s sex assigned at birth and bars agencies — and the forms they use — from promoting “gender ideology,” including the “false claim that males can identify as and thus become women and vice versa.”
As of April 28, Form 4473 still allows buyers to mark their sex as “male,” “female,” or “non-binary.” Any proposed change must go through the federal rulemaking process, including publication in the Federal Register and a period of public comment.
Erin Palette, national coordinator of the LGBTQ gun group Pink Pistols, told The Independent the proposed rule would place transgender people in a “Catch-22,” where any choice could expose them to federal criminal charges.
Patrick Eddington, a senior fellow in homeland security and civil liberties at the Cato Institute, a libertarian think tank, told The Independent “It’s pretty clear that [Trump’s team] want to try to collect data on individuals who don’t fit the regime’s idea of who is male and female… [creating] a de facto registry of people by gender identity.”
He also said the threat of jail would likely deter many transgender people from attempting to buy firearms, a constitutional right. “You’re talking about giving ATF agents and/or US attorneys a lot of latitude to essentially assert that someone made a false statement about their status. What they seem to be doing with this policy is attempting to chill constitutionally compliant firearms purchase by individuals who we know are at increased risk of violence. So it’s a pernicious proposal on multiple levels.”
Although Firearms Transaction Records are held by gun vendors rather than the federal government — and federal law prohibits a centralized, searchable registry of gun owners — some advocates argue that requiring transgender buyers to “out” themselves could allow authorities to identify and target them.
While there is no indication the ATF is inspecting gun vendors’ records, the Trump administration has moved to expand surveillance by the Department of Homeland Security, including the use of smartphone location data from commercial brokers and automated license plate recognition cameras, according to The Independent.
Ironically, Palette noted that Form 4473 was previously updated during Trump’s first term to include a “non-binary” option when asking a gun purchaser’s sex, noting “The Trump administration raised no objection at the time, or at any point before he left office in January 2021.”
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