Federal prisons will keep handing out cross-sex hormones to inmates on the taxpayer’s dime, because the Supreme Court refused on Wednesday to let the Trump administration stop it.
In a short, unsigned order in Trump v. Kingdom, the Court denied the administration’s emergency request to lift a lower-court block on the Bureau of Prisons’ new policy. The Court gave no explanation. Justices Clarence Thomas and Samuel Alito said they would have granted the request.
What the policy does
The Bureau of Prisons adopted the policy in February. Under it, inmates diagnosed with gender dysphoria would keep getting mental-health care: psychotherapy, counseling and psychiatric services. What would end are sex-change surgeries, hormone treatment for gender dysphoria, and “social accommodations” such as wigs, binders and hair-removal devices. Inmates already on hormones would be tapered off on individual plans.
The bureau said it acted on newer scientific information and on security and prison-management concerns. The policy follows President Trump’s first-day executive order directing that no federal funds be spent on procedures “for the purpose of conforming an inmate’s appearance to that of the opposite sex.” The order states it is “the policy of the United States to recognize two sexes, male and female.”
One judge, nationwide
U.S. District Judge Royce Lamberth blocked the policy for every federal prison in the country. His June 17 order, renewed Aug. 26, put the policy on hold nationwide and ordered the bureau to keep providing the old treatments to a class of current and future inmates.
According to the administration’s filing, Lamberth’s order even froze the surgery ban, though the inmates suing hadn’t claimed they were harmed by that part of the policy. A divided D.C. Circuit panel voted 2-1 on Sept. 18 to leave his order in place, finding the bureau had not adequately considered its own experience under the old policy.
What the administration argued
Solicitor General D. John Sauer told the justices the block causes “irreparable harm to the government and to the public” by overriding the bureau’s authority to adopt rules prison officials consider necessary for security.
He pointed to the Court’s own recent rulings stressing the importance of “allowing politically accountable officials to make decisions about the permissible forms of treatment” for gender dysphoria. He called the appeals court’s ruling “a perfunctory determination” and argued that the lower court relied on evidence outside the official record and swapped in its own judgment for the bureau’s.
What comes next
Wednesday’s order doesn’t decide whether the policy is legal. The lawsuit continues, and the bureau must keep providing the treatments while it does. Lamberth, a Reagan appointee, found the inmates likely to win on their claim that the policy was “arbitrary and capricious” under federal administrative law.
The bottom line
Working Americans pay for their own prescriptions. Now they are footing the bill for cross-sex hormones for federal prisoners, because a single judge in Washington decided it for every federal prison in America. The elected president set the policy. The agency that runs the prisons set the rules. One judge erased both.
Thomas and Alito saw it for what it is. Prison officials, not district judges, are supposed to run prisons, and voters, through the people they elect, are supposed to decide how their money is spent.
The fight isn’t over. But until the Court lets the people’s representatives govern, Washington will keep paying for this.