Judges Lauren King of the US District Court in Seattle and Brendan A. Hurson of the U.S. District Court in Baltimore have issued preliminary injunctions blocking implementation of several provisions of executive orders signed by President Donald J. Trump on Jan. 20 and 28 that ordered a cut-off federal funding to any recipient whose operations include providing gender-affirming care to transgender minors.
Judge King ruled on Feb. 28 in a lawsuit brought by the states of Washington, Oregon, Minnesota, and Colorado and by three physicians who perform gender-affirming care to minors. Providing such care is not illegal in the four states, each of which has public institutions whose federal funding — including research grants to state universities that provide a significant portion of the budgets for those institutions — might be terminated under the terms of the executive orders. Judge King’s preliminary injunction bars the enforcement of the challenged executive orders provisions in the four plaintiff states.
Judge Hurson ruled on March 4 in a case filed by half a dozen transgender adolescents whose gender-affirming care was endangered by the executive order, as well as two national organizations, Parents and Friends of Lesbians and Gays (PFLAG) and the Gay and Lesbian Medical Association (GLMA), seeking to block the same provisions targeted by the State of Washington lawsuit, but on on a nationwide basis. He issued a nationwide preliminary injunction and was not willing to stay it pending defendants’ appeal.
Both judges, who were appointed by President Joe Biden, had issued temporary restraining orders (TROs) shortly after the lawsuits were filed. Such orders must be sharply time-limited and generally cannot be appealed by the defendants. They are intended to freeze the status quo while the court decides whether to issue a preliminary injunction that can remain in effect as the litigation proceeds through discovery, possible trial, and a final decision on the merits by the district court. This process can take years, especially in a complicated case. The defendants can seek to have preliminary injunctions “stayed” or can appeal them to a higher court. Neither judge was willing to stay their preliminary injunction, so it is likely that the Trump administration will attempt to get stays from the courts of appeals while pursuing appeals. The administration may even cry “emergency” and seek a stay from the Supreme Court.
The executive orders in question purport to protect “children” from regret associated with adults “changing a child’s sex through a series of irreversible medical interventions.” Judge King found that despite the rhetoric in the orders, they are not limited to children, nor to irreversible treatments, nor do they target “any similar medical interventions performed on cisgender youth,” and, as written “would prevent federally funded medical providers from providing necessary medical treatments to transgender youth that are completely unrelated to gender identity.” The judge was presented with “voluminous evidence, including expert testimony, demonstrating the deficiencies in the executive orders,” wrote Judge King, but the defendants failed to rebut this evidence with “experts” of their own, and “affirmatively chose not to put Plaintiffs’ evidence to the test at an evidentiary hearing.”
The June 28 executive order declares that “women are biologically female, and men are biologically male,” pejoratively labels as “gender ideology” a “false” notion that “males can identify as women … and vice versa,” “denies the very existence of transgender people and instead seeks to erase them from the federal vocabulary altogether and eliminate medical care for gender dysphoria at federally funded medical institutions,” wrote Judge King.
She found that President Trump’s attempt to unilaterally countermand existing federal laws authorizing spending federal funds to support health care institutions had no basis in law, violating his presidential oath under Article II of the Constitution to see that federal law is “faithfully executed,” and violates the separation of powers under which Congress, not the president, decides which activities to fund.
Trump’s Jan. 28 executive order directs federal agencies to “ensure grant funds do not promote gender ideology,” with the intention of eliminating medical care for gender dysphoria for adolescents at all federally funded institutions, even in states that have not outlawed the practice. Unlike the laws in 24 states that now bar gender-affirming care for minors under age 18, whose constitutionality is being considered by the Supreme Court this term, Trump’s executive order threatens funding if an institution provides care for anybody under age 19. In most states, people who have reached age 18 are no longer minors, so Trump’s ban extends to some young adults.
Although the executive order has been construed by various federal agencies to require changes in existing practices — such as the State Department’s decision to abandon the policies adopted during the Biden Administration for dealing with gender identification on passports — these two lawsuits are focused only on the threatened cut-off of funding to institutions where gender-affirming medical procedures are performed. There are other lawsuits on file — more than 100 at this point — challenging other Trump executive orders and other applications of the Jan. 20 and 28 anti-transgender executive orders.
Both judges concluded that the plaintiffs had demonstrated that they are likely to succeed on the merits of their lawsuits based on two legal theories.
First, the plaintiffs claim that Trump’s actions violate the separation of powers that is an integral part of the governmental structure under the Constitution. Article I gives Congress the power to legislate and appropriate money. Article II provides that the president is to see that the laws enacted by Congress are faithfully executed. The President has no power to refuse to spend the money that Congress has authorized. Congress has enforced this separation of powers in a statute, the Impoundment Act, which forbids the president from refusing to spend the money Congress has appropriated. The Trump administration is arguing that under Article II the president cannot be restrained by the Impoundment Act, and as chief executive he has the right to place conditions on the payment of money based on his policy preferences.
Second, the plaintiffs claim a violation of the Equal Protection of the Laws, which the Supreme Court has repeatedly found to be covered under the Due Process Clause of the Fifth Amendment, part of the Bill of Rights adopted in 1791. Both judges are constrained by the decisions of the Courts of Appeals of the circuits in which their courts are located (Ninth Circuit for Seattle, Fourth Circuit for Baltimore) that have ruled that claims of discrimination against people because of their gender identity or transgender status are subject to a form of judicial review called “heightened scrutiny,” under which the discriminatory law is presumed to be unconstitutional unless the government can show that it substantially advances an important government interest. Both judges found that the challenged provisions are unlikely to survive heightened scrutiny for a variety of reasons.
In evaluating the factors that govern the issuance of preliminary injunctions, both judges found that failure to block the executive order provisions would cause “irreparable harm” to the plaintiffs. This is not just about money damages, which can sometimes take care of harm that is primarily economic. This is about denial of health care that has been recommended by doctors and falls within the standards of practice endorsed by the major health care professional organizations. This can cause personal physical and psychological harm to the transgender adolescents. The threat to cut off federal funding to state research universities affiliated with health care institutions could result in the interruption of research and experiments, the prevention of important scientific discoveries, layoff of staff, closure of programs, and other things that would be “irreparable” in the sense that after-the-fact monetary damages payable to the institutions in question could not fully compensate for the harm.
Both judges found that the public interest is advanced by preventing the government from violating constitutional rights. Having found it likely that plaintiffs will prevail in proving the violation of constitutional rights, they are entitled to preliminary injunctive relief.
In opposing the preliminary injunctions, the Justice Department lawyers advanced the facetious argument that the plaintiffs in both cases lack standing to sue because nobody’s funding has been cut off yet, and when the lawsuits were filed the federal departments charged with implementing the executive orders had not even issued guidelines or invoked procedures to implement them. The judges focused on reality. Upon publication of the executive orders, several major hospitals notified transgender patients that their appointments were cancelled. The hospitals anticipated possible funding losses which were enough to freeze them in their tracks, so the argument about lack of “standing” was absurd and treated as such.
As noted, the Trump administration is likely to appeal these preliminary injunctions, but the appeals will go to circuit courts that have ruled in other transgender cases in favor of plaintiffs alleging unconstitutional discrimination. The most likely destination of both cases is the Supreme Court, unless the Trump administration rescinds the executive orders and drops its war on transgender people.
