The Supreme Court on Wednesday refused to let the Trump administration enforce a Bureau of Prisons policy that would end hormone treatments and certain surgeries for transgender inmates, leaving in place a lower court order that blocked it.4,6,7
The court acted through an unsigned, one-line order that rejected the Justice Department’s emergency appeal, which had asked the justices to freeze the district court’s order and revive the new rules. Justices Samuel Alito and Clarence Thomas dissented, saying they would have allowed the administration to enforce the change.4,7
The bureau’s February policy stated that it would not provide surgeries or hormone therapy to address gender dysphoria. Inmates already receiving hormone treatments could be placed on a tapering plan that would eventually lead to their discontinuation. Under the rules, the bureau would also stop providing social accommodations such as breast padding, binders, wigs and makeup to inmates with gender dysphoria.4,6,7
The policy followed an executive order by President Trump that barred the use of federal funds for medical procedures or treatments for transgender inmates in Bureau of Prisons custody. In a memo accompanying the policy, the bureau cited that order and said it had changed its rules to “reflect treatment for gender dysphoria that is more aligned with the latest scientific information,” while remaining consistent with its longstanding policy of tailored medical care and accounting for “complex security and administration concerns in the correctional environment.”7
The lawsuit was filed last year on behalf of incarcerated people diagnosed with gender dysphoria. In June, U.S. District Judge Royce Lamberth, who was appointed by President Ronald Reagan, issued an order preventing the administration from enforcing the February policy and requiring the bureau to continue providing medical interventions and social accommodations to the class. “The court does not wade into the culture war being waged against transgender individuals,” Lamberth wrote in a 31-page decision. He issued an order in August that continued to block the policy.7
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit then declined to lift the injunction in a 2-1 decision. The appeals court said the bureau “did not adequately consider its own experience providing gender-affirming care under its prior policy” and had not made a strong showing that it was likely to succeed on the merits of the case.7
The administration sought the Supreme Court’s intervention last month. Solicitor General D. John Sauer argued that the district court’s decision “prevents the application of the Executive’s chosen policy” on a broad basis. He defended the policy, saying the bureau “seasonably considered its prior experience both in determining that such interventions are not medically necessary and in determining that security and prison-administration concerns independently justified a change in policy.” The administration has said the new policy is needed to “maintain institutional security.”7
Lawyers for a transgender woman and two transgender men in federal prisons, who challenged the rules, said the bureau has provided hormone treatment to people with gender dysphoria since 1992 and that the new policy would end treatment for nearly 1,000 inmates in its custody. They argued that the administration had put forward no evidence on whether the treatments were effective, ineffective or harmful, and that it had not “pointed to a single security incident” tied to providing them. “BOP cut off treatment that its healthcare providers had recommended for decades and replaced it with psychotherapy,” the lawyers wrote.7
The plaintiffs’ lawyers also wrote that the rationales for the change were “contrived to support the demand President Trump made in the EO.” Lawyers for the inmates urged the justices not to “overturn a three decades-long status quo” at the administration’s behest.3,7
The order did not explain the court’s reasoning. It leaves Lamberth’s injunction in place while the underlying case continues, and the bureau cannot move forward with the policy for now.4,6,7