REPORT: Three states sue Trump administration to protect gender-altering procedures for kids

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From Fox News: The attorneys general of three states filed a lawsuit against the Trump administration Friday for trying to bar children from accessing gender-altering procedures.

President Donald Trump signed an executive order in late January titled “Protecting Children From Chemical And Surgical Mutilation.” Its goal is to restrict “chemical and surgical” sex-change procedures for minors.

“Across the country today, medical professionals are maiming and sterilizing a growing number of impressionable children under the radical and false claim that adults can change a child’s sex through a series of irreversible medical interventions,” the executive order stated. “This dangerous trend will be a stain on our Nation’s history, and it must end.”

Since then, local Democratic officials around the country have resisted, arguing that Trump is trying to deprive vulnerable American citizens of a fundamental right. Attorneys general Nick Brown of Washington state, Keith Ellison of Minnesota, and Dan Rayfield of Oregon filed a lawsuit attempting to argue that Trump’s order is not only “cruel,” but unconstitutional.

READ MORE from Fox News.

Civil rights attorney Sarah Parshall Perry of the Heritage Foundation predicted the lawsuit will fall flat. She wrote:

State Attorneys General (in NY, MN, WA, OR) suing over @POTUS’s Executive Order prohibiting federal funding of “gender affirming” care for minors have all brought variations of the same claims. So what is their likelihood of success? Slim, at best. Here’s why 🧵

1. Claim #1: “Transgender and gender-diverse individuals are fully protected by the equal protection guarantee of the Fifth Amendment, and regulations targeting them for discriminatory treatment are subject to heightened scrutiny.”

No, they’re not.

The Supreme Court has never held that “transgender status” is equivalent to sex, and therefore, subject to a higher, stricter tier of judicial review.

The Court has reserved that for characteristics like race, sex, national origin–that are “immutable,” or bestowed by, as the Court wrote in Frontiero v. Richardson (1973), determined solely by one’s “accident of birth.”

In stark contrast, “Transgender status” is internal, subjective, malleable, & transitory.

Just because someone believes themselves to be one thing does not indicate the government has to act in accordance with that belief.

In fact, during oral arguments in U.S. v. Skrmetti (considering the constitutionality of Tennessee’s ban on “gender affirming” care for minors) this past December, Justice Samuel Alito pinned down transgender ACLU attorney Chase Strangio in getting Strangio to admit that no, transgender status was NOT immutable.

2. Claim #2: The President’s E.O. is illegal because “The Constitution vests Congress with the authority to condition spending, not the President.”

Remember the E.O. prevents the use of Medicaid, Medicare, & Obamacare funding for performing/advancing “gender affirming care” for minors.

Their claim is that Congress already appropriated funds to be disbursed through HHS without those limitations, & that @POTUS can’t revise the text of statutes passed by Congress & signed into law.

Yes, but.

This is like comparing apples & oranges.

Appropriations acts are not identical to statutes that regulate public or private conduct, and that difference matters.

Appropriations laws (like those authorizing Medicaid, Medicare, Obamacare expenditures through HHS) only fund the operation of government. And government officials may not spend undisbursed federal funds.

Appropriations laws operate against a background of substantive laws empowering government officials to take certain actions & prohibiting those officials from taking others.

As the Supreme Court wrote in Tennessee Valley Authority v. Hill (1978):

We recognize that both substantive enactments and appropriations measures are “Acts of Congress,” but the latter have the limited and specific purpose of providing funds for authorized programs. When voting on appropriations measures, legislators are entitled to operate under the assumption that the funds will be devoted to purposes which are lawful and not for any purpose forbidden.

The Attorneys General do not cite to the text of any substantive or appropriations statute law that President Trump violated, so the Tennessee Valley Authority v. Hill rule applies here.

The E.O. does not violate any specific federal law, even though it implicates funding.

3. Claim #3: “The President has no enumerated power to regulate the practice of medicine or to criminalize medical practices. Nor has he been authorized by Congress to do so.”

Yes, states have a right to regulate the practice of medicine under the Constitution’s 10th Amendment, but NOT when federal funding is involved.

After the Supreme Court’s decision in Dobbs v. Jackson Women’s Health overturning Roe v. Wade, the issue of abortion was “returned to the people and their elected representatives.” A resulting patchwork of abortion laws in the states ensued.

But none implicated the claim here: that the feds had to pay for abortion.

Washington, New York, Minnesota, Oregon can require state hospitals to make transgender medical procedures available, but CANNOT require the federal government to fund them.

States have no constitutional authority to bind the federal government to any particular duty–financial or otherwise.

Even IF a party has a constitutional right to select certain medical care (that’s a big IF, considering the unproven, highly contested, controversial nature of these “procedures” for confused kids), not once but twice, in Maher v. Roe (1977) & Harris v. McRae (1980)–

–the Supreme Court has held that even if a party has a constitutional right to select certain medical care, the government has no constitutional duty to pay for it.

In sum: I’m not sure where these blue-state, trans-obsessed, virtue-signaling progressive agitprop Attorneys General went to law school,

—but they might be due for a refresher.

End 🧵

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