The Bureau of Prisons Gives 600-Plus Inmates Hormone Therapy. Trump's DOJ Wants the Supreme Court to Let It Stop.

The Justice Department asked the Supreme Court on September 28 to let the Bureau of Prisons stop paying for hormone therapy, gender-affirming surgery, and accommodations such as wigs and chest binders for transgender inmates in federal custody, a policy the agency adopted in February that a district judge has kept blocked since June. Mental health treatment for inmates diagnosed with gender dysphoria would continue either way. The medical treatments and the accommodations would not, if the policy takes effect.

What the February policy does

The policy traces to an executive order from early in Trump's second term directing agencies not to spend federal money "for the purpose of conforming an inmate's appearance to that of the opposite sex." The Bureau of Prisons wrote its rule against that instruction: no more sex-trait-modification surgeries, no more hormone treatment for gender dysphoria, and no more accommodations such as chest binders and wigs. Mental health services for inmates diagnosed with gender dysphoria stay in place under the same policy.

Transgender inmates in federal custody sued to block the policy as a class. U.S. District Judge Royce Lamberth, appointed to the bench by Ronald Reagan in 1987, ruled against the government in June. He found that the Bureau of Prisons did not dispute that gender dysphoria can cause "severe side effects, including depression, anxiety and suicidal thoughts," and he wrote in blunt terms for a district court order that the new policy had been "reverse engineered" to carry out the executive order rather than developed through the agency's own clinical judgment.

A divided panel of the U.S. Court of Appeals for the D.C. Circuit left Lamberth's order in place earlier this month, which is what sent the Justice Department to the Supreme Court's emergency docket. The specific reasoning behind the panel's disagreement was not detailed in the reporting available at filing time. More than 600 inmates' access to an ongoing medical treatment turns on how the court eventually rules, along with a broader question that outlasts this case: how much deference an agency gets when its policy follows a president's executive order rather than the agency's own clinical process.

Two arguments, on the record

Solicitor General D. John Sauer's filing argues the Bureau of Prisons' clinical judgment deserves deference and that the district court overstepped by second-guessing an agency security determination.

“Sex-trait-modification surgeries, hormone interventions in general, and social accommodations could no longer be justified as treatment for gender dysphoria.”

Sauer has argued this kind of case before, from the other side of a similar amendment. As Missouri's solicitor general, he defended the state's execution protocol at the Supreme Court in Bucklew v. Precythe, a case that also turned on the Eighth Amendment's ban on cruel and unusual punishment. In Bucklew, he argued the state's chosen method did not violate that amendment. In this filing, he argues that withholding a specific medical treatment from a specific class of inmates does not violate it either, so long as the agency says the decision serves institutional security.

Attorneys for the inmates, representing them through the American Civil Liberties Union, call the policy "a direct threat to the well-being of transgender people in federal custody and an open violation of their fundamental rights." Their reading of the same amendment runs the other way: that denying medically necessary treatment to people the government itself confines amounts to cruel and unusual punishment, regardless of the security rationale attached to the decision.

What happens next

The application goes to Chief Justice Roberts first, as with any emergency matter arising from the D.C. Circuit. He can act alone, refer it to the full court for a vote, or ask the inmates' lawyers to respond before ruling, and the docket sets no deadline for any of those options. STAT News reported the filing is one of several emergency requests the administration has brought to the Supreme Court this year over transgender-related policy.

Until the court rules, Lamberth's order controls, and the Bureau of Prisons keeps providing hormone therapy to the inmates who were already receiving it. What changes, for whom, and starting when still depends on a decision nobody has made yet.