Trump’s Funding Freeze Is Enjoined. What Does That Mean for Gender Doctors?

How the legal arguments over his “mutilation” order are shaping up

In February 2007, Children’s Hospital Boston opened its Gender Management Services (GeMS) with a bang. At least eight major media outlets ran features on the travails of “transgender children” within two years. The reporting was entirely credulous toward Norman Spack, who was GeMS’ director, and his counterparts at Children’s Hospital Los Angeles.

Soon ambitious young doctors spread the franchise of pediatric gender medicine (PGM) to hospitals in other cities, and from there encouraged small town doctors to get in the game as well. Daniel Shumer, for example, studied under Spack and then seeded a PGM clinic at University of Michigan. He led a training in which he and a partner encouraged therapists to recruit general practitioners and pediatricians throughout the state to prescribe hormones to kids.

Christopher Lewis learned about PGM as a medical resident during an “advocacy rotation.” He opened a PGM clinic at Washington University in St. Louis a few years later. Advocacy was in its DNA. The clinic provided legal assistance and community “outreach,” and Lewis cited “educating” others about PGM to be “the thing that I get the most reward from being part of the medical community.” When speaking to Missourians about the “biological aspects of gender,” he states that sex is not “entirely one thing or the other.”

The wealthy institutions that host these men are more than just healthcare providers. They’re research centers with PR teams and outreach programs, and a big economic footprint in their communities. Some have now been evangelizing for PGM for almost two decades.

On January 28, President Donald Trump signed an executive order to fight the “mutilation” of youths under 19. It charged the Department of Health and Human Services (HHS) with “defunding” PGM, in large part by cutting grants to all hospitals and universities engaged in the practice. Not just grants related to PGM, but all grants. Federal funding is a major source of revenue for these entities. HHS’s sub-agency National Institute of Health (NIH) pushes out $35 billion annually.

Is the Mutilation EO legal?

In the three weeks since Trump took office, he’s lost court battles over an earth-shaking “funding freeze” that his administration ordered. It appears his EOs are not vetted by the Justice Department’s Office of Legal Counsel, as regulation requires. All of this leaves gender-critical observers worrying that the Mutilation EO might be an overreach that courts will eventually vacate.

In this post I’ll look at the arguments that have been flying lately about federal funding, including those made in two lawsuits challenging the Mutilation EO. It turns out that the “funding freeze” doctrines are different from those that arise in the Mutilation EO context (assuming the latter relates only to new grants and not open grants that have already been promised to recipients). But the commotion of today’s funding battles could blow back on the Mutilation EO.

I’ll go through this in timeline style, as so many arguments build on something that happened the day before. But first…

What Is an Executive Order?

EOs are instructions from the president to the agencies that are part of his administration. They’re not laws. In other words, no one can be sued or prosecuted for violating an EO. The president might fire an agency head for shirking it. That’s the extent of its enforceability.

When members of the public sue to challenge an EO, they’re asking the court to declare it unconstitutional/unlawful and block agencies from following it.

Jan. 20: “Defending Women Against Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”

Hours after inauguration, Trump signs an executive order (EO) defining sex and declaring his administration will:

“defend women’s rights and protect freedom of conscience by using clear and accurate language and policies that recognize women are biologically female, and men are biologically male.”

Section 3(g) of this Two-Sexes EO:

“Federal funds shall not be used to promote gender ideology. Each agency shall assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.”

The first sentence sounds notional and the second – the one that’s drafted more cautiously – like the plan of action. When you’re meting out grants, don’t choose the guy in a van with the word HOTT painted on the side.

NYC’s Callen-Lorde, which apparently transes kids in a van, currently receives federal funding for “HIV/AIDS Surveillance.”

But why not read the first sentence literally? Cut off funds to anyone promoting gender ideology.

Jan. 27: OMB Cuts Funding to Everyone

As week 2 of the second Trump administration kicks off, the Office of Management and Budget carries out the Two-Sexes EO, and many others, by directing agencies to freeze all funds except social security and Medicare:

“to the extent permissible under applicable law, Federal agencies must temporarily pause all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be implicated by the executive orders, including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal.”

The purpose is to protect “taxpayer dollars”:

“The use of Federal resources to advance Marxist equity, transgenderism, and green new deal social engineering policies is a waste of taxpayer dollars that does not improve the day-to-day lives of those we serve.”

Societal disruption ensues as agencies withhold funds from hospitals, nonprofits, and schools.

Jan. 28: National Council of Nonprofits v. OMB

Nonprofits scramble to protect their federal funding by suing OMB in the federal District of DC. On January 28, Judge Loren L. Alikhan issues an emergency “administrative stay” on the OMB Directive as to open awards only, meaning the administration can still do what it wants as to granting new awards or taking other action related to funding.

Jan. 28: “Protecting Children from Chemical and Surgical Mutilation”

Trump signs an EO declaring:

“it is the policy of the United States that it will not fund, sponsor, promote, assist, or support the so-called ‘transition’ of a child from one sex to another[.]”

In contrast to the parsimonious OMB Directive, the Mutilation EO does not fret about fiscal waste. It just conveys, in barbed language, that transing kids is immoral.

Section 4 calls for “defunding chemical and surgical mutilation”:

“[Each agency] that provides research or education grants to medical institutions, including medical schools and hospitals, shall, consistent with applicable law and in coordination with [OMB], immediately take appropriate steps to ensure that institutions receiving Federal research or education grants end the chemical and surgical mutilation of children.”

It continues:

(a) The Secretary of HHS shall, consistent with applicable law, take all appropriate actions to end the chemical and surgical mutilation of children, including regulatory and sub-regulatory actions, which may involve the following laws, programs, issues, or documents:

(i) Medicare or Medicaid conditions of participation or conditions for coverage;

(ii) clinical-abuse or inappropriate-use assessments relevant to State Medicaid programs;

…

(vii) the Eleventh Revision of the International Classification of Diseases and other federally funded manuals, including the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition.

Similar to the OMB directive, the EO repeatedly states “consistent with applicable law.” This is known as a savings clause. “Appropriate steps” are in there too. Does responsible jargon like this save an order from being declared unconstitutional if other language in the order would be unconstitutional on its own? Courts have ruled in both directions (yes, no).

The OMB Directive’s savings clause seems disingenuous. It was carried out too swiftly for agency lawyers to have researched what the law required.

Jan. 29: OMB Directive Rescinded

OMB issues a curt memo about the funding freeze:

“OMB Memorandum M-25-13 is rescinded. If you have questions about implementing the President’s Executive Orders, please contact your agency General Counsel.”

Jan. 30: Hospitals Bail on PGM

Hospitals are shutting down their PGM practices. Denver Health, Children’s National Hospital (DC), Children’s Hospital of Richmond (VA) and Virginia Commonwealth University Health confirm they’re bailing to NBC on Jan. 30.

The list will grow.

Jan. 31: HRSA Defunds PGM

HHS’s Health Resources and Services Administration (HRSA) emails grantees:

“Effective immediately, HRSA grant funds may not be used for activities that do not align with Executive Orders (E.O.) entitled … Protecting Children from Chemical and Surgical Mutilation, and Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (Defending Women). Any vestige, remnant, or re-named piece of any programs in conflict with these E.O.s are terminated in whole or in part.”

Jan. 31: New York v. Trump

Blue states team up to sue Trump over the funding freeze. While New York takes the lead, they file in the federal District of Rhode Island – perhaps because the First Circuit is very favorable terrain for Democrats.

Federal lawyers argue the case is moot because the OMB Directive was rescinded. Chief Judge John J. McConnell says it’s not moot because the administration is still behaving as though it might yank everyone’s funding. In his order of Jan. 31, he lays out some recent history (citations omitted):

“the Defendants filed a Notice [in this court] saying, ‘OMB elected to rescind that challenged Memorandum.’ Yet about twenty minutes before the Defendants filed the Notice, the President’s Press Secretary sent a statement via the X platform that said: “The President’s [Executive Orders] EO’s on federal funding remain in full force and effect and will be rigorously implemented.” And then the following day (January 30, 2025 at 7:50 MST and again at 5:27 p.m. EST) after the so-called rescission, the Environmental Protection Agency, in an email to federal grant recipients, said that the awarded money could not be disbursed while it worked ‘diligently to implement the [OMB] Memorandum, Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs, to align Federal spending and action with the will of the American people as expressed through President Trump’s priorities.’”

It's a broad ruling. Judge McConnell emphasizes that he wishes he could draw it more narrowly; he’s not saying the federal government has no power over spending:

“Are there some aspects of the pause that might be legal and appropriate constitutionally for the Executive to take? The Court imagines there are, but it is equally sure that there are many instances in the Executive Orders’ wide-ranging, all-encompassing, and ambiguous ‘pause’ of critical funding that are not. The Court must act in these early stages of the litigation under the ‘worst case scenario’ because the breadth and ambiguity of the Executive’s action makes it impossible to do otherwise.”

McConnell finds “the States are likely to succeed on the merits of some, if not all, their claims[.]” The points he highlights don’t resemble the “future NIH grants” scenario.

Judge McConnell’s order is similar to Judge Alikhan’s, from the nonprofits’ lawsuit:

“During the pendency of the Temporary Restraining Order, Defendants shall not pause, freeze, impede, block, cancel, or terminate Defendants’ compliance with awards and obligations to provide federal financial assistance to the States, and Defendants shall not impede the States’ access to such awards and obligations, except on the basis of the applicable authorizing statutes, regulations, and terms. “

Feb. 2: CDC Defunds Gender Ideology

HHS emails recipients of funds from the Center for Disease Control:

“You must immediately terminate, to the maximum extent, all programs, personnel, activities, or contracts promoting or inculcating gender ideology at every level and activity, regardless of your location or the citizenship of employees or contractors, that are supported with funds from this award.”

Is this a threat to yank funds? If so, two courts now have blocked Trump’s ability to (legally) follow through on it.

Feb. 3: National Council of Nonprofits v. OMB

In the nonprofits’ funding-freeze lawsuit, Judge Alikhan extends her stay in the form of a temporary restraining order (TRO). The federal government still can’t meddle with open grant awards; future grants and other administrative acts aren’t subject to the TRO.

The plaintiffs had accused OMB of illegally “impounding” funds allocated by Congress by refusing to spend them. Judge Alikhan doesn’t rule on this claim because she doesn’t have to. She only needs one argument to support the TRO and she chooses the Administrative Procedure Act. The OMB Directive was “arbitrary and capricious”:

“The APA requires a rational connection between the facts, the agency’s rationale, and the ultimate decision. Defendants have offered no rational explanation for why they needed to freeze all federal financial assistance—with less than twenty-four-hours’ notice—to ‘safeguard valuable taxpayer resources.’ …

“Rather than taking a measured approach to identify purportedly wasteful spending, Defendants cut the fuel supply to a vast, complicated, nationwide machine—seemingly without any consideration for the consequences of that decision. To say that OMB ‘failed to consider an important aspect of the problem’ would be putting it mildly.”

While Alikhan doesn’t rule on impoundment, she does note it is potentially an issue. After sketching the legal principle, she finds (citations omitted):

“Defendants’ actions in this case potentially run roughshod over a ‘bulwark of the Constitution’ by interfering with Congress’s appropriation of federal funds. OMB ordered a nationwide freeze on pre-existing financial commitments without considering any of the specifics of the individual loans, grants, or funds. It did not indicate when that freeze would end (if it was to end at all). And it attempted to wrest the power of the purse away from the only branch of government entitled to wield it.”

This differs from the Mutilation EO, which doesn’t direct HHS to sit on appropriated research funds but rather lets it dole them out to entities that aren’t transing kids. (I assume Congress hasn’t specifically designated funds for PGM, but perhaps I shouldn’t overestimate our elected officials.)

The government had argued the case was moot because it rescinded the OMB Directive. Alikhan found she needed to rule – and to rule broadly – because government agencies were freezing funds in ways that seemed unrelated to the OMB Directive or EOs:

“As just one example, a health center that provides medical, dental, and behavioral health services to a rural community was denied access to grant funds. None of the seven executive orders listed in [the OMB Directive] would seem to cover such activity.”

Feb. 3: Gotham v. Puberty

In midtown Manhattan, the Democratic Socialists of America summon hordes of people to protest NYU Langone Hospital for canceling puberty blocker appointments. The crowd numbers over a thousand as it marches down First Avenue, according to NYU’s campus paper and the terfs of ROAR Women NYC.

Actress Cynthia Nixon declares at the rally that her daughter and niece are trans, as well as her best friend’s daughter and her daughter’s best friend.

Later in the week, trans activists will protest outside a hospital in Seattle.

Feb. 4: PFLAG v. Trump

A powerhouse team of lawyers from the ACLU, Lambda Legal and biglaw firms Hogan Lovells and Jenner & Block sue Trump in the federal District of Maryland over the Mutilation EO. Their clients are an “LGBTQ” medical lobbying group known as GLMA and trans-identified kids and their families. They argue the Mutilation EO is unconstitutional and conflicts with various federal statutes.

The complaint alleges that attaching strings to federal grants is a violation of the separation of powers:

“None of the Congressional conditions placed on the grants administered or disbursed by HHS, HRSA, NIH, or any other HHS’s subagencies condition federal funds on the terminating gender affirming medical care.”

Wait – the executive can’t place any conditions on grants that weren’t precisely specified by congress? HHS can’t fund one hospital instead of another based on the type or quality of care it provides? So all these minute decisions are being made in Congress? Maybe this argument will look better when the plaintiffs flesh it out in a brief, but right now it’s fishy.

The lawsuit also alleges anti-trans and sex discrimination, which I’ll address below, and refers repeatedly to the HRSA Directive, which I won't address because …

Feb. 5: HRSA Directive Rescinded

HRSA rescinds its “stop transing kids” directive the next day.

Feb. 7: NIH Grants for Overhead Costs Are Slashed

As the week winds down, NIH posts on X that it is capping the amount its grantees can spend on “indirect costs,” which basically means overhead. The “guidance” will be effective on Monday, February 10, so current grantees will experience an abrupt cut.

Trump first proposed the idea of capping indirect costs in 2018, according to Yuval Levin. The Republican-led House and Senate rejected it and actually inserted new language in the HHS appropriation bill to explicitly bar the president from enacting it. Congress has included that language in every HHS appropriations bill since. Because of this, Levin — writing for the conservative New Atlantis — argues the latest NIH guidance “is probably illegal.”

Blue states will sue in the federal District of Massachusetts and secure a TRO.

Feb. 7: New York v. Trump

In the blue state funding freeze lawsuit, Judge McConnell finds the administration is not complying with his previous order:

“In particular, Defendants have—for the first time this week—taken the position that certain federal funds, including federal financial assistance under the Inflation Reduction Act (“IRA”) and the Infrastructure Improvement and Jobs Act (“IIJA”), is outside the scope of the Court’s Order, a position contradicted by the plain text of the Order and the notice Defendants previously filed with the Court … there is no world in which these scattershot outages, which as of this writing impact billions of dollars in federal funding across the Plaintiff States, can constitute compliance with this Court’s Order.”

On Monday, Judge McConnell will declare Trump has violated his order and remind the administration that it could be held in criminal contempt.

Feb. 7: Washington v. Trump

Washington, Oregon, Minnesota, and three anonymous Washington doctors sue Trump in the federal Western District of Washington.

Why are these three states leading the charge against the Mutilation EO? Oregon has more PGM patients than Massachusetts, even though its population is 60% of the Bay State’s and Boston is ground zero for the entire epidemic. Washington has more kids on hormones or blockers than New York, even though New York is more than double Washington’s size. Minnesota has been at the vanguard of trans rights since the mid-1960s and its attorney general, Keith Ellison, is a progressive firebrand.

They bring similar claims as PFLAG v. Trump, plus argue that Trump has violated the states’ right to sovereignty under the Constitution’s Tenth Amendment – an issue they connect to the EO’s passage on female genital mutilation, not defunding.¹

The plaintiffs assume the Mutilation EO will lead to immediate loss of funding:

“Absent an injunction, the Order will terminate over one billion dollars of federal funding to the Plaintiff States’ medical schools and hospitals that is used to research and treat hundreds of conditions having nothing to do with gender-affirming care[.]”

Trump hasn’t moved against these institutions’ entire portfolios. But his antagonism toward grantees in general validates the states’ hysteria.

Blair Peters is a surgeon who amputates girls’ breasts at Oregon Health & Sciences University Hospital.

Like the ACLU’s clients, these plaintiffs argue that denying grants to gender doctors is discrimination by sex, transgender status, and disability (gender dysphoria). Like the other plaintiffs, they have filed in a jurisdiction where their case will be easier to make because trans-identified people are a quasi-suspect class (though the Skrmetti ruling expected in June could wipe out those precedents). The sex and trans discrimination arguments are basically the same as the ones used to challenge state bans on PGM. Four of those have gone to trial so far, and the plaintiffs have won twice.

But this week the discrimination argument took an unexpected hit.

As hospitals skittered away from child gender medicine, the attorneys general of California and New York warned them that it was, in their legal judgment, illegal discrimination not to trans kids. It seems if a surgeon performs mastectomies for breast cancer patients then she must also perform them for gender-dysphoric 13-year old girls, against her medical judgment, and despite the lack of evidence supporting gender medicine, or else she could face civil prosecution under state human rights laws.

The AGs are calling out hospitals that got out of the game in response to the Mutilation EO. But their legal theory should apply equally to doctors who never transed anyone to begin with.

All of this follows logically from the claim the ACLU has been making for years when it attacks bans. But in this formulation – aimed at healthcare providers rather than at state legislatures – it’s much more alarming. The AGs are presenting the reductio ad absurdum of the ACLU’s argument.

Now that the absurdity is revealed, I don’t think a judge will rule there’s a right to PGM under anti-discrimination law.

Feb. 9: The Tweet

Vice President JD Vance posts on X:

“Judges aren't allowed to control the executive's legitimate power.”

Is Vance threatening to blow off the judicial branch? Georgetown law prof Steve Vladeck assures us the next night that although Vance “walked right up to that line … no one in the executive branch has yet called for, or appears to be engaged in, outright defiance of a federal court order.”

Chaos, not crisis.

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I’ve yet to see a compelling argument that HHS can’t condition future grants on hospitals and universities nixing PGM. One may exist, but far be it from me to build and publicize it.

Still, there’s cause for concern.

Congress could react to the funding-freeze high jinks by passing more restrictive appropriations bills. Republicans only hold a slight majority in each chamber, and they are not lock-step opposed to PGM.

Courts might issue rulings in other funding cases that narrow the executive’s discretion in general (this is the risk of litigating any case that has “bad facts” for your side).

The barrage of fast-paced litigation brought by defunding victims and others aggrieved by Trump's actions may strain the Justice Department which, like most of the federal government, is operating under a hiring freeze. If bedraggled attorneys decamp to the private sector, the government won’t have all the administrative and constitutional law wonks it needs to defend bold presidential moves.

But for now, many hospitals are quietly capitulating to the Mutilation EO. And this on its own might spell doom for PGM. We’re told to support it because it’s “life-saving” – but gender doctors abandon their young patients at the sight of a feisty presidential pronouncement that is not even a law? With their hospitals’ PR teams nowhere to be found, the gender doctors may finally be exposed.

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Related: My X thread on Washington v. Trump

1. The “states’ rights” claim addresses the Mutilation EO’s section that directs investigation into whether PGM for girls is female genital mutilation (FGM). The states argue:

“The President cannot unilaterally, and without any Congressional authorization whatsoever, interfere with the States’ prerogatives by criminalizing the provision of safe, effective, and necessary medical care.”

Of course, the EO isn’t inventing a crime. It cites a federal statute that defines criminal FGM as “any procedure performed [on a minor] for non-medical reasons that involves partial or total removal of, or other injury to, the external female genitalia[.]” The testosterone that gender doctors prescribe to girls permanently damages their clitoris. Apparently the plaintiff states and doctors admit this.