How Trump's war on DEI and trans rights hit a legal wall

In his first 100 days of office, President Trump issued 142 executive orders -- 43 more than the prior record by President Franklin D. Roosevelt in 1933. While Roosevelt's orders aimed to expand the reach and utility of the federal government during the Great Depression, bringing relief and a safety net to people suffering around the country, Trump's orders seek to dismantle agencies, terminate federal workers and destroy the very support systems Roosevelt and subsequent administrations built.

In the first two days of his presidency, Trump signed three executive orders targeting transgender people specifically, as well as Diversity, Equity and Inclusion (DEI) initiatives. The titles of those orders leave little doubt about their underlying political agenda: "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government," "Ending Radical and Wasteful Government DEI Programs and Preferencing" and "Ending Illegal Discrimination and Restoring Merit-Based Opportunity."

What remains to be seen is how federal agencies will implement these orders and how courts will interpret their constitutionality, reach and impact.   

Cases challenging the orders raise significant legal questions about the power of the executive branch, the First Amendment and what conditions the government can impose on recipients of federal funds. Like virtually all of Trump's actions thus far, however, one thing is clear: the administration's public vitriol and bombast bear little resemblance to the government's defense of those actions in federal courts.

A month before taking office, Trump promised a crowd at "AmericaFest" that he will "end the transgender lunacy." And during a joint session of Congress in March, he declared, "we have ended the tyranny of so-called diversity, equity and inclusion policies all across the entire federal government and, indeed, the private sector and our military, and our country will be woke no longer." About a month before, Attorney General Pam Bondi issued a memorandum requiring the Department of Justice Civil Rights Division to file a report detailing how to enforce civil rights laws to end "illegal" DEI programs in the private sector, including "proposals for criminal investigations" of corporations, non-profits, foundations, State and local bar and medical associations, and institutions of higher education.

In defending legal challenges to these policies, the administration's tone has been markedly different. In San Francisco AIDS Foundation, et al. v. Trump, et al., pending in the Northern District of California, several federally funded LGBTQ, health and HIV organizations filed suit alleging the executive orders violate their free speech protections, discriminate based on sex in violation of the equal protection clause, and are ultra vires because they violate federal law and attempt to usurp Congress's funding powers.

On their face, the orders purport to immediately ban all federal funding for any recipient that promotes "gender ideology" and DEI initiatives. The termination provisions, for instance, direct federal agencies to ensure that no federal grants are used for the "promotion of gender ideology" or for "equity-related" grants or contracts. The certification provisions require all federal grantees to certify that they do "not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws." The plaintiff organizations thus face actual and threatened loss of federal funds integral to their missions and the people they serve, even if those funds were already appropriated by Congress pursuant to federal laws. These threats were made without any explanation of what constitutes "illegal DEI" or "gender ideology."

In defending the provisions, the administration struck a very different tone from their public statements. Regarding the termination provisions, for instance, the administration argued "[t]he Executive Orders do not purport to establish the illegality of all efforts to advance diversity, equity or inclusion, and they should not be so understood." It also claimed the orders "do not unequivocally compel agencies to improperly withhold congressionally appropriated funds."

The administration's arguments about the certification provisions were similar. While admitting that "new conditions on federal funds" could implicate separation of powers concerns, the administration argued that no such concerns were raised here since the orders "merely reinforce[] preexisting legal obligations." And despite the express language of the orders, the administration argued that these provisions "neither adopt[] any new construction of antidiscrimination law nor declare[] all DEI to be illegal. Rather, [they] simply require[] recipients to certify their compliance with existing legal obligations under the 'applicable' federal civil rights laws such as Title VI of the Civil Rights Act of 1964." In short, according to the government and despite executive branch statements to the contrary, funding recipients would simply be "asked to certify compliance with the anti-discrimination laws, not with the government's interpretation of them."

But if the executive orders were merely reinforcing existing federal law, what should courts make of all the threats contained in the orders? The administration's answer was that those threats were "merely rhetoric, not discriminatory action." The district court rejected many of these arguments and issued a preliminary injunction on June 9th, enjoining the gender and DEI provisions. The court rejected the administration's argument that the gender funding termination provisions were "mere rhetoric," since the federal government had already withheld federal funds from the plaintiffs based solely on the transgender status of the individuals they serve. The court further found the provisions discriminated against transgender individuals on their face, as their stated purpose was a constitutionally illegitimate goal to "deny the existence of transgender persons entirely."

The court also held that the funding termination provisions violate plaintiffs' rights under the First Amendment by targeting so-called "dangerous ideas" of "equity," "DEI" and "gender ideology." It rejected the administration's argument that it was merely choosing to fund some programs but not others, holding that the orders require defunding of "all activities, speech, and conduct that is even related to the dangerous ideas it has identified." In targeting only speech that "promotes gender ideology" or advances DEI, while tolerating speech in opposition to those topics, the court found this was likely invidious viewpoint discrimination that violates the First Amendment.

The court also held that by commanding federal agencies to bar funding to organizations assisting transgender populations or advancing DEI initiatives, the executive orders conflict with the statutory mandates of multiple federal laws that require funding for at-risk populations, including the Ryan White program, the Housing Opportunities for People with AIDS program, funding provisions for federally qualified health centers and the antidiscrimination provisions of the Affordable Care Act.

It remains to be seen whether the government will appeal the district court's order. In the meantime, more than $4 million in federal funds has been reinstated to the plaintiff organizations, ensuring that, for now, they can continue to serve their clients and communities.