High Court Record Supports Trump’s Moves to Erase CA Trans Youth

The US Department of Health and Human Services recently notified California that it’s terminating $12.3 million worth of grants it awarded the state. The HHS said the termination is a response to California’s refusal to censor itself and remove all content related to the existence of transgender students from the California Personal Responsibility Education Program.

The Trump administration’s decision to deprive California of those grants is illegal, unconstitutional, and devastating to the trans community. And it’s a step taken by the executive branch with troubling support from the Supreme Court.

Legal Implications

The HHS’s act is illegal because the grants are not generous donations but funding ordered by federal law that compels their allotment for all states to support youth under the federal State Personal Responsibility Education Program (PREP). To achieve its goals, this law includes the subject of “adolescent development, such as the development of healthy attitudes and values about adolescent growth and development [and] body image.”

Additionally, the HHS states on its website that PREP is aimed at reaching young people while particularly listing “sexual minorities” among its addressees. Therefore, issues related to the development and body image of transgender students are squarely covered by PREP as structured by Congress. But the HHS under the Trump administration has taken a conflicting position, claiming that handling those issues is illegitimate. It has accused California of “using taxpayer money to teach curricula that could encourage kids to contemplate mutilating their genitals.” It also labeled any handling of gender identity issues as “egregious” and “delusional” forms of “gender ideology.”

This action carries devastating results that go far beyond its immediate budgetary implications: It’s a piece of the fierce attacks from the Trump administration on the very existence of transgender people in public life. Previous assaults include the refusal to issue passports that match trans holders’ gender identity, the halt of funding of medical institutions engaged in studying or providing gender-affirming care, the removal of transgender service members from the military, the exclusion of health care coverage for gender-affirming treatments, regardless of age, for government employees, and the demand that hospitals will surrender confidential medical information regarding transgender minor patients.

Taken together, these brutal acts not only wreak havoc on trans people’s lives. They also constitute a project of social erasure, seeking to repudiate the very notion of having a gender identity that differs from sex assigned at birth, and to squash any public recognition of transgender existence. Revealing this radical purpose, the HHS’s letter to California relentlessly repeats the derogatory term “gender ideology,” thereby adopting and disseminating the conservative movement’s rhetoric that seeks to limit people’s gender to “the bodies that God gave [them] and that medicine has come to associate with ‘male’ and ‘female.’”

A Fundamental Right

The colossal harm of social erasure is inflicted in clear violation of specific laws, such as the legislation ordering the federal funding of the PREP sexual education programs. It also, perhaps more importantly, directly violates the Constitution: Bluntly and intentionally discriminating against transgender people, infringing on their constitutional right to equal protection under the law, and doing so with impunity.

While many lower courts have demonstrated full commitment to protecting this fundamental right, enjoining, for example, the ban on transgender military service, the Supreme Court has not followed suit.

In the few months leading up to penalizing California for its support of LGBTQ youth, the conservative supermajority controlling the Court has sent significant anti-trans signals that must have further emboldened the already hostile administration. In US v. Shilling, the court allowed the military ban to go into effect as the litigation proceeds. In US v. Skrmetti, it wielded contorted logic on the merits and irregular moves on the shadow docket to allow red states to deny minors’ access to gender-affirmative care. And finally, in Taylor v. Mahmoud, it permitted religious parents to remove their kids from classrooms whenever a storybook with LGBTQ characters is used. And there is more to come, as the court has selected to hear in the coming term cases aimed at legitimizing conversion therapy and excluding transgender athletes from participation in girls’ and women’s sports.

In making all these moves, the conservative members of the Supreme Court have embraced and fostered the Trump administration’s anti-trans erasure project. For example, although the HHS letter to California doesn’t cite Skrmetti, it echoes the unsubstantiated claim that treating minors’ gender dysphoria is a scientifically questionable concept. Against a record reflecting a consensus in the American medical community, the opinion in Skrmetti closed with the statement by Chief Justice John Roberts that the case “carries with it the weight of fierce scientific and policy debates.” Two months passed, and the HHS letter to California similarly, and just as misleadingly, now asserts that “gender ideology is not supported by the weight of science.”

Conservatives on the court and at the HHS artificially rely on science to conceal how political and antagonistic to trans rights are their respective moves. But note how in Skrmetti, the court reasoned that such alleged scientific uncertainty requires deference to red states that ban gender-affirming care, out of respect for what the court called their “democratic process.”

By sharp contrast, the HHS currently uses the excuse of science to override, rather than respect, California’s democratic process, to stifle blue states, and to federally impose a religion-based version of sexual education. This irreconcilable contradiction demonstrates how conservatives in all branches are willing to misuse their power—warping science, legislation, and the Constitution—to outlaw ideas, realities, and persons they wish to excise.

All told, the HHS’s latest punitive move against California’s inclusive approach to sexual education is a piece of a broader and highly troubling form of multi-branch constitutional opportunism, where the federal system of governance ordered by the founders for all people is maneuvered to undermine blue states and the fundamental rights of sexual minorities.

The latest cuts do more than turn modern sexual education into indoctrinated miseducation of adolescents. They move us further away from federal democracy and dangerously closer to a federalized theocracy.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Hila Keren is a professor at Southwestern Law School. She has written extensively about inequalities created or supported by the law, including recent attacks on LGBTQ+ rights.

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