Courts Enjoin Enforcement of Trump Executive Order Targeting Incarcerated Transgender People

By Anton Kernohan, legal intern 

Throughout history, the LGBTQ+ community has persisted despite repeated laws and attempts to restrict the community’s rights. Since assuming office, President Trump has undertaken the most recent iteration of actions that once again threaten the lives of LGBTQ+ persons, especially transgender, non-binary, and intersex individuals. 

Article II of the Constitution instructs the President of the United States to “take care that the laws be faithfully executed.” Presidents often administer the laws through executive orders. A signed executive order instructs federal agencies to take specific actions in the name of ensuring said laws are “faithfully executed.” Presidents throughout this country’s history have enacted executive orders to direct executive agencies as to how to carry out their duties, which often impacts the lives of the general public. Some previous examples relevant to the LGBTQ+ community include President Reagan’s executive order establishing the Presidential Commission on the Human Immunodeficiency Virus Epidemic and President Biden’s executive order directing federal agencies to ensure that policies related to sex discrimination extended to sexual orientation and gender identity discrimination as well. 

President Trump recently issued the following executive order that endangers the rights of the LGBTQ+ community: “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the federal Government.” As we recently noted, this order states that it is the policy of the federal government to recognize only two sexes, male and female, and instructs (1) federal agencies to eliminate all references to gender identity in official forms and documentation, (2) the State Department to use an individual’s sex assigned at birth on all federal gender markers such as passports, (3) the Department of Housing and Urban Development to rescind regulations ensuring transgender individuals have access to safe shelters, and (4) the Bureau of Prisons (BOP) to prohibit appropriate healthcare and housing for incarcerated transgender individuals.  

Transgender and gender non-conforming individuals make up a disproportionate population of incarcerated persons.  These statistics make Section 4 of the “Defending Women from Gender Ideology Extremism and Restoring Biological Truth” executive order, which instrucst the Bureau of Prisons to deny medically necessary healthcare and appropriate housing for incarcerated transgender individuals, particularly concerning. 

Section 4(a) states “[t]he Attorney General and Secretary of Homeland Security shall ensure that males are not detained in women’s prison or housed in women’s detention centers[.]” Further restricting the rights of transgender women in prison, Section 4(c) reads “[t]he Attorney General shall ensure that the Bureau of prisons revises its policies concerning medical care to be consistent with this order, and shall ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.” If enforced together, the Sections drastically curtail the rights of incarcerated transgender women.  

GLAD Law and the National Center for Lesbian Rights (NCLR) are challenging Sections 4(a) and 4(c) in three different lawsuits – Moe v. Trump, Doe v. McHenry, and Jones v. Trump. In these cases, the plaintiffs are “transgender women who were [1] suddenly removed from their general population housing in women’s prisons, placed in special housing units (SHU), or faced imminent transfer to men’s facilities” and “[2] were also at risk of having their essential medical care terminated.” Collectively, these cases claim that the implementation of the executive order violates the Administrative Procedure Act (APA), the Prison Rape Elimination Act (PREA), and the Rehabilitation Act, and that Sections 4(a) and 4(c) violate the Fifth and Eighth Amendments. Each of these cases sought an emergency temporary restraining order (TRO) to prevent implementation of the executive orders while the case is being litigated. 

Moe v. Trump, filed January 26, is being litigated in the United States District Court for the District of Massachusetts. The Plaintiff, Maria Moe, is an adult incarcerated transgender woman who is at imminent risk both of transfer to a men’s facility and losing access to medically necessary care due to the executive order. That same day, Judge George O’Toole granted a temporary restraining order (TRO) which enjoined the defendants from transferring Moe to a men’s prison facility. The case was then transferred out of Massachusetts to the federal district court in the district where Moe is incarcerated.  

On February 4, Judge Royce C. Lamberth in the District Court of Columbia also issued a TRO in Doe v. McHenry. Judge Lamberth’s TRO centered on Plaintiffs’ claim that Sections 4(a) and (c) violate the Eight Amendment’s protection against cruel and unusual punishment. First, the Plaintiffs in that case argued Section 4(a) violates the Eighth Amendment because it “pose[s] a substantial risk of violence and sexual assault” and “of worsening gender dysphoria exacerbated by a lack of medical care[.]” Second, the Plaintiffs asserted that Section 4(c) violates the Eighth Amendment because this Section “constitutes deliberate indifference to the serious medical needs [for hormone therapy and other transition treatments] of all transgender people in BOP custody[.]” Judge Lamberth stated that to meet the relevant “failure to protect” and “deliberate indifference” standard “the Plaintiff must be confronted with an objectively intolerable risk of harm, and prison officials must knowingly or recklessly subject the plaintiff to such a known risk.”   

Judge Lamberth held that Defendants failed to contest (1) the severe effects “from failure to treat gender dysmorphia” and (2) the assertion that “the BOP is subjectively aware” that transfer will “substantially increase the likelihood . . . of harms.” Judge Lamberth found that “plaintiffs’ alleged constitutional harms would arise entirely and narrowly out of their placement in a male penitentiary and the denial of their hormone therapeutics.” Judge Lamberth concluded that “plaintiffs’ Eighth Amendment claims are sufficiently fit for judicial decision” and that “irreparable harm will follow if their TRO request” for both housing and medical provisions were denied. Judge Lamberth granted a TRO that went so far as to enjoin the implementation of Sections 4(a) and 4(c). 

As of the writing of this blog, Jones v. Trump is pending federal review in the District of Columbia.  

While a TRO is, as its name suggests, temporary, it at the very least allows for incarcerated transgender individuals to remain in the prisons that accord with their gender, and to continue receiving medical treatment until the case is resolved. These cases, as well as others challenging the anti-LGBTQ+ executive orders, are only the beginning of the long legal battle challenging the new administration’s attacks on LGBTQ+ people. 

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