The Brains Behind Biden’s Trans Crusade?

Meet the hotshot lawyer who scare-mongered about genital inspections back in 2020

“A lot of people fan-girl, fan-boy, fan-nonbinary over this person … Solicitor General Elizabeth Prelogar.”

– Prof. Kate Shaw, Strict Scrutiny Podcast (2024)

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When the United States of America attacked Tennessee’s ban on pediatric gender medicine (PGM) at the Supreme Court, its lawyer was US Solicitor General Elizabeth Prelogar.

Reporters swarmed the litigation, known as US v. Skrmetti. But they mostly left Prelogar alone, as though she were just some apparatchik carrying out the president’s agenda. That assumption would be wrong. By her own account, Prelogar decided which cases the US government would bring to the Courts of Appeal and Supreme Court. Not only that, but she advised on policy throughout the federal government as lawyers were crafting it – long before it was implemented or challenged. In an administration that tried to abolish sex through lawsuits and rulemaking, Prelogar was a central figure. Perhaps the central figure.

President Joe Biden recruited Prelogar before he took office in 2021. At the time she was a biglaw partner representing a young man who wanted to race against women in college track and cross-country.

This post is about Elizabeth Prelogar.

The Striver (2008-19)

Prelogar is the consummate Democratic lawyer.

After graduating from Harvard Law School in 2008, Prelogar clerked for Judge Merrick Garland on the DC Circuit Court of Appeals, followed by one term each with Supremes Ruth Bader Ginsburg and Elena Kagan. Clerking twice at SCOTUS is unusual; she says she’s a “big fan” of the job and each of her judges taught her something different.

Prelogar was recruited to Hogan Lovells by Neal Katyal, who’d been President Barack Obama’s solicitor general. She stayed two years — presumably long enough to collect the firm’s SCOTUS clerkship bonus of around $280,000 — then served at the Department of Justice from 2014 to 2019. For much of that time she was detailed to the special counsel Robert Mueller’s investigation of alleged Russian interference in the 2016 election. Prelogar says the experience confirmed for her that she belongs in appellate advocacy (not scrappy, fact-intensive prosecution).

By age 39 Prelogar was known as a “capital insider” destined for an appointment to the DC Circuit.

The Ally (2020)

In October 2019, the ACLU argued before the Supreme Court that federal law protected a man’s right to pretend to be a woman at his job as a funeral director. Bundled with two cases about anti-gay discrimination, the argument marked the arrival of “trans” as a platinum-tier civil rights issue. The ruling would be known as Bostock.

Prelogar joined Cooley as a partner a few months later, in January 2020, and set to work fighting for trans rights alongside another Cooley partner, Kathleen Hartnett, who would later barely escape sanctions for trying to steer a PGM lawsuit away from a conservative judge.

In March 2020, Idaho became the first US state to ban males from girls’ and women’s sports. Prelogar and Hartnett joined ACLU attorneys, including the notorious Chase Strangio, in suing. They represented Lindsay Hecox, “a woman who was assigned the sex of male at birth” (he’s a man) who wanted to compete on the Boise State women’s track team. Their other client: a 17-year old girl (actually female) using the pseudonym Jane. According to the complaint:

“Jane has never had any problems with girls who are transgender or intersex being allowed to play sports. She would welcome the opportunity to compete against girls who are transgender or intersex in the future.

“In fact, a big part of what Jane loves about sport is the way that sport brings people together and helps a diverse group of young people learn to support each other and work toward a common goal as teammates. She wants everyone to have access to the joy sport brings, including girls who are transgender or intersex.”

The Idaho statute allows girls to prove their sex by a test of genetics, testosterone levels, or “reproductive anatomy.” Note the word “or” in that sentence. A quick cheek swab for DNA satisfies the requirement.

Prelogar, one of the best lawyers in the country, somehow overlooked the word “or.” She and her co-counsel let their teen client believe she would have to undergo a vaginal probe:

“Jane does not want to have to go through an invasive or uncomfortable test just to prove that she meets the state’s new criteria for being deemed a girl. She finds it horrifying that a doctor might have to examine her genitals just so she can play sports. She has never had a genetic test, hormone test, or transvaginal pelvic ultrasound (insertion and manipulation of a probe with a camera several inches into the vagina) ...”

These superstar lawyers might have copied their argument from the Idaho Democratic Legislative Campaign Committee, which had already slimed the bill as “child genital exploration legislation.”

The complaint defines sex the same way gender doctors did in the 1960s, musing that it comprises “multiple attributes” including “gender identity.”¹ It falsely claims that the alternative to basing sex on gender identity is to classify it based on what a person’s genitals looked like when they were born.

As I’ve explained, the gender-doctor definition of sex makes it impossible to (coherently) articulate the purpose of gender medicine. You need the stable reference point that a binary, reproduction-based definition provides.

Suicide watch:

“Attempted suicide rates in the transgender community are over 40%. The only treatment to avoid this serious harm is to recognize the gender identity of patients with gender dysphoria and follow appropriate treatment protocols to affirm gender identity and alleviate distress.”

Note what’s missing. The complaint doesn’t say affirmation prevents or reduces suicide attempts. It’s just the “only treatment.” The high-powered drafters of this document presumably looked for evidence supporting affirmation and found it didn’t exist.

The plaintiffs scored a preliminary injunction; Idaho appealed to the 9th Circuit. Prelogar appears to have been the lead drafter of her side’s brief. The text quivers with indignation:

“[The statute’s] narrow definition of ‘biological sex’ is perfectly correlated to whether a woman athlete was assigned the sex of male at birth[.]”

Kudos to the Idaho legislature for capturing its idea of male “perfectly” without referencing baby genitals, even though its idea of male is entirely based on baby genitals (according to Prelogar).

Reprising the complaint’s false insinuation that the statute requires vaginal probes, Prelogar falsely accuses Idaho of “threatening all girls with invasive and humiliating exams of their reproductive anatomy[.]”

This line might be from Strangio:

“Appellants err in suggesting that ‘biological sex’ is a well-established legal concept and not one crafted in Idaho for the first time in 2020 to discriminate against transgender people.”

Why must sex be a well-established legal concept when it is an actual concept? Indeed, the brief later seems to acknowledge science is in play:

“The State’s false claim that transgender girls are identically situated to cisgender boys—i.e., that Lindsay is a man—contravenes science and basic decency, and should be given no weight.”

Prelogar left Cooley to join the Biden DOJ in January 2021. She called Strangio when she got the news.

A few months later Reuters profiled Hartnett for her heroic work in Hecox. The 9th Circuit ruled for him and Jane by keeping the preliminary injunction in place.

The Genderal (2021-25)

Before taking office in January 2021, President-elect Joe Biden announced that he’d nominate Rachel Levine, a trans-identified man, to be the assistant secretary of health at the Department of Health and Human Services (HHS). He also prepared to nominate Vanita Gupta, whose devotion to mixed-sex bathrooms dates back to 2016, as associate attorney general. And he asked Prelogar to take a post in the solicitor general’s office which would make her Acting SG. Months later he’d nominate her to the permanent role.

On inauguration day, Biden signed a bold executive order directing agencies to protect people based on “LGBTQI+” status and “gender identity.” It’s unclear how many of the points could be legally implemented, particularly those relating to HHS:

“The Secretary … shall … use … HHS’s authorities to protect LGBTQI+ individuals’ access to medically necessary care from harmful State and local laws and practices, and shall promote the adoption of promising policies and practices to support health equity, including in the area of mental health care, for LGBTQI+ youth and adults.”

“The Secretary of HHS shall consider how to use the Department’s authorities to strengthen non-discrimination protections on the basis of sex, including sexual orientation, gender identity, and sex characteristics …”

The authorship of the EO is not in the public record. It’s plausible that Prelogar and/or Gupta contributed.

The SG is America’s top courtroom lawyer and the #4 official at DOJ. She controls the government’s appellate strategy, deciding whether to appeal government losses and what position to take. While Prelogar spent much of her time briefing, mooting, and arguing at 1 First Street, she wasn’t cloistered. She interacted with other agencies quite a bit, by her own accounting in an April 2025 interview at Harvard:

“One of my favorite aspects of the job was being a true advisor and consultant within the executive branch. I had client agencies who would be contemplating massive rulemakings, the actions that touch on Americans everyday lives in myriad ways. We would often be able to come in at an early stage and help them game out where the litigation vulnerability was, how to think about crafting policy in light of those litigation risks, and ultimately advising them on options given where the courts are, given especially where the Supreme Court is, and providing that advice and consultation at the outset of a case.”

Several federal agencies – HHS, Education, and the Equal Employment Opportunity Commission – issued rules under Biden that interpreted sex discrimination laws to apply to people based on “gender identity.” They all relied on similar janky logic which echoed the EO’s suggestion that “gender identity” was somehow a part of “sex.” (I wrote about the Education Department’s published rationale and concluded: “The government lawyers are trolling us.”)

Multiple states and interest groups challenged these new rules. As far as I know, none survived motions for preliminary injunction before President Donald Trump came into office and abandoned them. It appears likely that Prelogar advised on this epic misadventure.

To be clear, I’m not arguing that Prelogar was behind every act of federal surrealism during Biden’s term. She probably didn’t hire the nonbinary public-fetishist Sam Brinton to safeguard nuclear waste, invite a moob flasher to a 2023 party on the White House lawn, script the president to tell a man dressed like Jacqueline Kennedy Onassis “you should have every single solitary right, including use of your gender identity bathrooms” in 2022, prosecute a surgeon for showing his hospital lied about PGM, or choreograph the 2022 Lesbian Visibility Day Roundtable that honored long-haired men. But one has to wonder what this shrewd attorney was thinking as the phantransmagoria twinkled down the street from her office.

Straight white men lecture black lesbians at the 2022 White House on Lesbian Day of Visibility.

Biden Does Pediatric Gender Medicine

HHS officials learned back in 2020, before Biden took office, that a review team working for WPATH (the transgender advocacy organization that publishes “medical” guidelines) “found little to no evidence about children and adolescents” and that WPATH was sitting on its findings. One official, Christine Chang, wrote back: “Knowing that there is little/no evidence about children and adolescents is helpful.” Chang appears to still work at HHS today.

But during the Biden years her work was in the clutches of Levine. In spring 2022, he spread propaganda in response to red state campaigns to ban pediatric gender medicine.

That year Levine also pressured WPATH, the trans medical lobbying association, to crank out its latest guidelines, SOC8. According to one WPATH member, Levine felt “[t]he failure of WPATH to be ready with SOC 8 [was] proving to be a barrier to optimal policy progress[.]” After reviewing a draft, Levine demanded that WPATH remove its age limits for certain treatments. (WPATH complied.)

In the midst of Levine’s moving and shaking, DOJ joined the legal challenge to Alabama’s ban in May 2022. Nicholas Confessore reports in the New York Times that “some legal experts outside the administration … were surprised at the decision” because intervention like that is rare.

The Confessore story, published in June 2025, relies heavily on unnamed former Biden officials. One is a “senior [DOJ] official.” Others seem to be from elsewhere, like the White House. They try to palm off responsibility:

“As the Biden administration grappled with the new bans, several former aides and officials told me, officials there usually deferred to the L.G.B.T.Q. advocacy groups and the medical associations about the scientific questions around gender-affirming care.”

This may be true of the White House and HHS. But not DOJ. Lawyers can’t ethically “defer to advocacy groups” when assembling their arguments. As soon as they filed anything on PGM “science” in court, they took ownership. DOJ’s civil rights team started fighting for PGM in 2021. The agency filed its first of several PGM appellate briefs (Prelogar’s bailiwick) in January 2022. Plus, Prelogar had already studied the basic “scientific questions around gender-affirming care” when she represented Lindsay Hecox.

Confessore continues:

“The administration’s top concern, according to two former aides, was that the bans were so broad that they might limit dysphoric children from even getting therapy. ‘The internal conversations were entirely about getting kids access to mental health care, and maybe puberty blockers,’ one official said. ‘That is where the president’s head was on these issues: The Republicans are using the power of the state to stop kids who feel gross about their bodies from seeing a therapist.’”

In other words, “it’s not happening.” But as Confessore reports, Levine was saying “it’s good that it’s happening” back in spring 2022. In May of that year, DOJ acknowledged in an Alabama filing that WPATH guidelines permitted mastectomies for minors.

It may be that White House officials convinced themselves PGM bans were really about therapy. But it’s hard to believe DOJ lawyers – who analyzed statutes and pored over briefs on both sides of the issue – were so ignorant.²

Ultimately, Biden’s view on PGM bans might not have mattered. Prelogar insists that he never told her what to do. “It's not the norm for the White House to be directive about the positions we're taking.” The SG has operated independently “since what feels like time immemorial.”

Confessore pins DOJ’s enthusiasm for PGM litigation on relatively low-level lawyers. He doesn’t name Prelogar, even though she must have been a key player in these discussions (emphasis added):

“When Tennessee’s ban passed in February 2023, lawyers in the department’s civil rights division lobbied to move aggressively. The attorney general, Merrick Garland, was at first skeptical. In conversations, Garland and his advisers weighed whether the case was strong enough to merit the time and resources it would consume if the civil rights division were to intervene. Eventually, though, Garland signed off. Most of his team viewed the case as a straightforward matter of civil rights enforcement …”

As Garland’s former clerk, Prelogar presumably had a strong relationship with him – and some sway when he overcame his initial “skeptical” attitude.

Another of “his advisors” was probably AAG Gupta, who served until February 2024. But her role would seem to be secondary. She’s not publicly linked to Skrmetti and she didn’t control appellate strategy. Likewise, Kristen Clarke, who headed DOJ’s civil rights division, would have been in the mix as one of those aggressive civil rights lawyers – but she was outranked by Prelogar and Gupta.

Team Trans won a preliminary injunction against Tennessee’s ban but then lost on appeal. Should DOJ appeal to the Supreme Court? Its thinking, according to Confessore:

“[O]nce the A.C.L.U. went ahead [and appealed] in Tennessee, this [DOJ] official told me, the Biden administration had to follow. Steering clear of Skrmetti ‘would have telegraphed loudly to the court that the department didn’t have the courage of its convictions,’ the official said.”

It’s an odd line that boils down to: DOJ petitioned because it felt a sense of conviction over PGM. Again, the decisionmaker was Prelogar – she didn’t receive orders from her boss, the AG.

Prelogar explains how the SG decides to file an appeal:

“Anytime the federal government loses on an issue anywhere and there's an interest in seeking further review, you have to get personal authorization from the solicitor general, and that plays out through a process … where you have everyone writing a recommendation. … You'll have the component that has subject matter expertise at DOJ weigh in ... Agencies likewise, are invited to weigh in.”

In sum, HHS and civil rights lawyers at DOJ likely had a voice in appealing Skrmetti to SCOTUS, with Prelogar wielding the ultimate power.

Alabama later argued in an amicus brief that DOJ appealed Skrmetti so it could argue to freeze the litigation in that state, before the discovery became public. It’s a plausible theory that's consistent with Prelogar caring a lot. In any case, the judge denied DOJ’s motion and the damning revelations spilled into view in summer 2024. Confessore describes the fallout:

“There was … growing tension between the A.C.L.U. and the Justice Department, three former government officials told me. (The A.C.L.U. and a spokeswoman for Prelogar denied this account.) … In private, … some administration lawyers worried that their allies had pushed them onto thin scientific ice.”

Those worried “administration lawyers” didn’t necessarily work at DOJ. White House aides were miffed about trans in general because, they said, they’d just learned about Levine meddling in SOC8. “Everyone was like, holy cow — did Rachel Levine really go out and lobby for 9-year-olds to get surgery?”

So who at DOJ had tension with the ACLU? Maybe no one – it’s possible that Confessore’s shadowy DOJ source misled him to salvage the collective reputation of Biden’s DOJ posse. But if we assume good faith …

I don't think Prelogar was among the officials feeling tension with the ACLU. First, she denies it. Second, her work on Hecox, her oversight of PGM-ban appeals since then, and her behind-the-scenes access to Alabama’s confidential discovery suggest she already knew the evidence for PGM was weak by the time that discovery became public.

Third, Prelogar didn’t try to distance herself from Strangio’s shifty rhetoric at oral argument. In fact she was shiftier.

Prelogar Argues Skrmetti (Dec. 4, 2024)

The Supreme Court heard Skrmetti on December 4, 2024. It was Prelogar’s penultimate appearance as SG. The transcript shows a vigorous argument.

Medical Harms

Justice Clarence Thomas presses Prelogar on whether testosterone (steroids) affects girls and boys differently – a crucial point because it undermines her claim that girls and boys should have equal access to the drug (in fact boys don’t have access to T to satisfy cosmetic desires, but anyway). The answer is yes, it wallops girls’ clitorises, vaginas, and uteri, causing pain, sexual dysfunction, and sterility; boys lack those body parts. The record contains an expert report to that effect. Here’s how Prelogar answers the question.

Justice Thomas: Is there no difference … if a girl takes testosterone or if a boy takes testosterone?

Prelogar: [Tap dances about what the district court judge found.]

Thomas: Is there no physiological difference?

Prelogar: Certainly, I understand that there are biological differences between males and females, but when it came to the specific risk factors that the State was focused on …

Thomas: Well, I'm more interested in whether or not there is a difference in testosterone and its reaction in a male as opposed to in a female.

…

Prelogar: So, if you take hormones, they will prompt the development of secondary sex characteristics, and -- and whether you're a male or a female, if you take testosterone, you might develop a deeper voice register …

Prelogar is then rescued by an interrupting Justice Ketanji Brown Jackson, who will ultimately side with her.

“Evidence”

Justice Alito zeroes in on an outrageous claim in Prelogar’s petition for Supreme Court review, which she filed in November 2023:

"Overwhelming evidence establishes that the appropriate gender-affirming treatment with puberty blockers and hormones directly and substantially improves the physical, psychological well-being of transgender adolescents with gender dysphoria."

Prelogar’s brief cited the District Court. That decision did extol “evidence” – but it meant legal evidence, i.e., affidavits filed by gender doctors. Not scientific evidence. To illustrate, the judge quoted plainly dubious opinions. For example, Deanna Adkins:

“All of my patients who have received medical treatment for gender dysphoria have benefitted from clinically appropriate treatment.”

Two problems. First, Adkins had treated hundreds of patients so it’s suspicious that all of them benefited and she was sure of it. Second, Adkins is an endocrinologist and not a mental health professional. She lacks expertise to evaluate the benefits of PGM. So even taking “evidence” to refer to expert opinion (not scientific studies), the judge was wrong to see it as “overwhelming” and Prelogar was wrong to parrot his error.

Alito doesn’t point out that there was never “overwhelming evidence” for PGM. But he recounts some recent developments that expose the claim and asks Prelogar if she wants to “modify that and withdraw the statement[.]”

After allowing “that there is a lot of debate happening here and abroad about the proper model of delivery of this care,” Prelogar subtly swaps out the term “evidence” for “consensus”:

“I stand by that there is a consensus that these treatments can be medically necessary for some adolescents, and that's true no matter what source you look at.”

So Prelogar sanitized the judge’s mistake and plugged it into a Supreme Court brief in November 2023. Then she quietly abandoned it in her August 2024 brief, after the whole world learned just how risible the claim was. Finally in December 2024, standing before Alito, she backed off it sneakily, so that only the most obsessive TERF blogger would realize she had. The claim she substituted it with – “consensus” – was also false, as some doctors dispute that PGM is medically necessary for anyone.

Another whopper in the 2023 brief: that PGM “directly and substantially improves the physical … well-being” of trans-identified teens. The District Court decision she cites does not say that.

From a 2024 Vanity Fair photo shoot. The decorative books have since been DOGE’d.

Suicide

Prelogar points out that no other countries have banned PGM and speculates it’s because of “the recognition that this care can provide critical, sometimes life-saving, benefits for individuals with severe gender dysphoria.”

Prelogar knows PGM doesn’t save lives. Surely she read Tennessee’s briefs, which confront the suicide myth head-on. Later in the hearing Strangio will concede the point. It’s striking that Strangio, whom Confessore depicts as a nutjob, demonstrates higher ethical standards than the golden girl Prelogar.

One more suicide lie from Prelogar:

“[W]hat this law is doing is saying we're going to make all adolescents in the State develop the physical secondary sex characteristics consistent with their gender or with their sex assigned at birth, even though that might significantly worsen gender dysphoria, increase the risk of suicide …”

The next month Biden left office and Prelogar decamped to Harvard Law School for a visiting-professor gig. In June, Lambda Legal honored her with a “Liberty Award” at a fundraiser in New York City. The CEO said he was “awestruck” by her performance in Skrmetti. It “exemplifies … professional excellence and leadership for LGBTQ+ communities[.]”

The Loser (2025)

This year President Donald Trump appointed John D. Sauer as SG. He has experience litigating against gender nonsense. (I wrote about his team’s challenge to PGM expert witness Daniel Shumer.)

As to Skrmetti, the Supreme Court ruled for Tennessee in June 2025. Harvard law professor Jeannie Suk Gersen, writing about the decision in the New Yorker, expressed sympathy for the gender doctors’ legal argument and criticism of the way Prelogar presented it:

“In its 2023 petition to the Court, Biden’s Justice Department came in with overblown claims of scientific consensus …

“[T]he failure to sufficiently acknowledge medical uncertainty made even knockdown legal arguments to the Court seem untrustworthy. … I had wondered if the loss of credibility regarding medical evidence would push away the possible swing votes.”

Even a genteel peer of Prelogar, who uses the word “transgender” uncritically and thinks gender doctors have “knockdown legal arguments,” can’t pretend that how she behaved in that case was right. (Conservative legal commentator Ed Whelan has been on Prelogar’s case since before oral argument.)

What was Prelogar thinking as she plotted her course through Skrmetti? She once described a moment when she couldn’t decide what position to take as SG in a high-stakes case:

“This is going to sound really corny, but I had spent a lot of time on it and one night I went out for a run … I ran to the Lincoln Memorial and, like, stood there and looked up at Lincoln … and thought to myself, I had been put in this role to exercise my judgment. And this is a hard issue when you think about the interests of the United States, which line up on both sides. But it's not a hard issue when you think about what is the just or right answer in this context. I'm going to do that thing.”

OK, but how does Prelogar figure out what is just? I’ve listened to several hours of her talks and interviews and I have no idea.

Prelogar preaches the importance of characterizing legal precedent accurately at oral argument, if only “to advance the greater good of making sure we maintain our integrity with the Court.” What about presenting the facts accurately? What about evaluating the facts yourself? She must know after years of grappling with briefs and expert reports against PGM that it isn’t supported by evidence, doesn’t prevent suicide, and injures kids. So what makes it “the just or right answer”?

Prelogar is returning to Cooley this summer. The Supreme Court will hear Hecox in the coming term, perhaps in November. Hartnett is counsel of record. Does Prelogar want to rejoin the litigation team? Does she want to lend her star power by arguing it, even though the trans brand has tumbled from its Bostock-era zenith?

We'll soon find out if Elizabeth Prelogar has the courage of her convictions.

Update (Jan. 19, 2026): Prelogar did not rejoin the Hecox litigation team.

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1. From the complaint: “The term ‘biological sex’ is imprecise. A person’s sex encompasses several different biological attributes, including certain chromosomes, certain genes, gonads, the body’s production of and response to certain hormones, internal and external genitalia, secondary sex characteristics, and gender identity.”

2. The administration’s focus on mental health care for trans-identified youth dates back to day 1, in the EO (quoted above). Why? Gender-affirmative therapy hardly needed a boost from the White House — the mental health profession was staunchly behind it and many states had already passed laws against “conversion therapy” that chilled use of competing models. I wonder if lawyers in Biden’s orbit persistently framed PGM as a question of talk therapy, from day 1, and that’s why it was the White House’s “top concern” about PGM bans in the states.