The Supreme Court on Wednesday denied the Trump administration’s attempt to halt gender-affirming care for inmates in federal prison while a legal challenge plays out.
The court’s unsigned, two-sentence order maintains a lower court judge’s freeze on a Federal Bureau of Prisons policy banning hormone therapy and other treatments for transgender people in federal prisons and immigration detention centers.
The order notes that Justice Clarence Thomas and Justice Samuel Alito would have granted the administration’s application to put the previous ruling on hold and allow the policy to take effect while the litigation proceeds.
Had the court ruled in the administration’s favor, many of the roughly 2,000 federal inmates who identify as transgender could have lost access to a range of treatments that have long been available to them.
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The Bureau of Prisons, which oversees the nation’s 153,000 federal inmates, issued the most recent version of the policy in February, seeking a near-total ban on gender-affirming care.
In addition to targeting hormone therapy, it sought to prohibit surgeries and social accommodations such as clothing, cosmetics and chest binders. It also seeks to remove a general requirement that prison staffers use an inmate’s preferred pronouns.
As an alternative, the new policy proposes providing inmates psychotherapy and psychotropic medication.
Previous policies allowed surgeries, hormones and social support for inmates who were transitioning.
The American Civil Liberties Union and other advocacy groups sued on behalf of several inmates with gender dysphoria last year, arguing that the new policy violates the Eighth Amendment’s ban on cruel and unusual punishments. The lawsuit, which was brought in Washington, D.C., also alleges violations of administrative law.
U.S. District Judge Royce Lamberth certified a class of plaintiffs that includes all people who are or will be in Bureau of Prisons custody “who are or will be diagnosed with gender dysphoria.” He issued multiple rulings blocking the policy, finding that the plaintiffs were likely to succeed at least on their claim that the government didn’t take legally required steps in developing it.
The Trump administration went to the Supreme Court last month seeking an emergency order blocking Lamberth’s order. Government lawyers argued that blocking the policy nationwide would pose unspecified “security and prison-administrative concerns.”
Executive branch officials needed particularly broad leeway to independently make decisions about treatment for gender dysphoria “in the context of prison administration,” government lawyers argued in their application.
The government said inmates would still be provided “appropriate, individualized treatment for gender dysphoria, while disallowing only interventions that are medically unnecessary.”
In response, the ACLU contended that granting the government’s request would overturn a “three-decades long status quo” under which prison officials provided hormone treatment for people who entered federal custody already receiving such care.
The group’s brief said the prisons bureau had ignored its own data on transgender care when developing the new policy in violation of federal administrative law.
The ACLU also said the prisons bureau had not pointed to “a single security incident relating to its provision of this treatment over the past 30 years, and it does not ban other types of medical care that actually do present security issues.”
“Had BOP’s doctors found this treatment unhelpful or harmful to patients or had the agency found that the treatment compromised security, surely BOP would have mentioned it in the administrative record,” the ACLU said.
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