Labor & Employment Law Daily Wrap Up, PRIVACY—D. Mass.: States win first victory in challenge over gender-affirming care EO, DOJ memos, (Jun 8, 2026)
Organizations Mentioned:U.S. Department of Justice
By Sheila Lynch-Afryl, J.D., M.A.
Trump’s January 2025 Executive Order said gender-affirming care for youth “must end.”
A case challenging President Donald Trump’s January 2025 Executive Order (EO) on youth gender-affirming care and two Department of Justice (DOJ) memos will proceed after the court denied the federal government’s motion to dismiss. The court concluded that the purpose of the April 2025 memos was “to intimidate and harass. It aims to end gender-affirming care by frightening gender-affirming care providers, [transgender, nonbinary, and intersex] people, and the many people who love their TGNBI family, friends, and community members.” It is likely that the 17 plaintiff states will next file a motion for declaratory judgment or other injunctive relief (Commonwealth of Massachusetts v. Trump, No. 25-CV-12162-AK (D. Mass. June 3, 2026)).
EO and memos. In EO 14187, “Protecting Children from Chemical and Surgical Mutilation,” Trump said gender-affirming care for youth, defined as 18 and under, “must end.” Section 8(a) of the EO requires the DOJ to review enforcement of 18 U.S.C. § 116, which makes it a felony to perform or attempt to perform “female genital mutilation” (FGM) on a person under 18, and “prioritize enforcement of protections against female genital mutilation.” Section 8(c) requires the DOJ to prioritize investigations and take appropriate action to end deception of consumers, fraud, and violations of the Food, Drug, and Cosmetic Act (FDC Act) by any entity that misleads the public about “long-term side effects of chemical and surgical mutilation.”
Pursuant to the EO, then-Attorney General (AG) Pam Bondi issued a memo in April 2025 ordering the Civil Division’s Consumer Protection Branch to investigate violations of the FDC Act by manufacturers and distributors engaged in “misbranding by making false claims about the on- or off-label use” of puberty blockers and hormones. A June 11 DOJ Civil Division memo outlined its enforcement priorities, including using “all available resources to prioritize investigations of doctors, hospitals, pharmaceutical companies, and other appropriate entities consistent with” Bondi’s and the EOs’ directives.
Complaint. In August 2025, 16 states and the District of Columbia filed a complaint alleging that the Trump administration’s actions have caused some providers to scale back or stop providing gender-affirming care. The complaint alleges:
the DOJ memos are arbitrary and capricious, in violation of the Administrative Procedure Act (APA);
the DOJ memos are contrary to law, in violation of the APA; and
the EO and agency actions violate the Tenth Amendment.
The federal government filed a motion to dismiss.
Agency interpretation. The court first concluded that the DOJ memos articulate new interpretations of federal law. The Bondi memo, for example, announced a new policy to prosecute gender-affirming care as female genital mutilation because it equated gender-affirming care with mutilating children; was issued pursuant to an EO that does the same; and tied that understanding to the FGM Act. It also articulated new interpretations of the False Claims Act (FCA) because it “outlaws gender-affirming care under the FCA by identifying the provision of and support for gender-affirming care as a falsehood” and the FDC Act because “healthcare providers’ medically accurate statements about gender-affirming care are false claims prosecutable under the FDCA, regardless of whether they are made in conjunction with on- or off-label uses of medication.”
Standing. Next, as to standing under the APA, the memos’ clear policy announcements and the DOJ’s enforcement actions—including investigations and subpoenas—support a finding of injury in fact for pre-enforcement standing. The states also experience direct harms from the memos in three ways: (1) state facilities have spent significant time and resources addressing their current patients’ questions and ensuring that they fulfill their ethical and legal obligations to these patients; (2) because of the memos, many hospitals halted or limited the provision of gender-affirming care to adolescents, and state facilities lost time and money handling an influx of new patients and requests to initiate care; and (3) the states will be responsible for the cost of delayed care for gender dysphoria. The states also have standing to pursue a declaratory judgment and their Tenth Amendment claim.
APA claims. The federal government argued that the states’ APA claims fail because the memos do not constitute a final agency action within the meaning of the APA. The court found that the memos constitute a final agency action because they “mark the consummation of the DOJ’s decision-making process regarding the interpretation of the Statutes” by binding DOJ employees. In addition, DOJ leadership has made multiple public statements indicating that they announce permanent policies.
Tenth Amendment. Finally, the plaintiffs stated a claim under the Tenth Amendment because the complaint alleges that the “EO and Memos reach far beyond their statutory authority.” The memos’ interpretations, the court concluded, “directly conflict with Plaintiff States’ laws protecting transgender adolescents’ access to gender-affirming care, which were enacted in exercise of Plaintiff States’ traditional authority to pass laws regulating medicine and to safeguard its citizens health and welfare.”
Injunctions blocking section 4. Two courts have blocked section 4 of EO 14187, which requires agencies and departments that provide research or education grants to medical institutions to “immediately take appropriate steps” to ensure that they “end the chemical and surgical mutilation of children.” In PFLAG v. Trump, the District of Maryland granted a nationwide preliminary injunction as to section 4, and in Washington v. Trump, the Western District of Washington blocked enforcement of section 4 in Colorado, Minnesota, Oregon, and Washington. These preliminary injunction orders are being appealed in the Fourth (No. 25-1279) and Ninth (No. 25-1922) Circuits, respectively.
The case is No. 25-CV-12162-AK.
Judge: Kelley, A.
Attorneys: Adam M. Cambier, Massachusetts Attorney General's Office, for Commonwealth of Massachusetts. John Bailey, U.S. Department of Justice, for Donald J. Trump.
Cases: Privacy IndividualRights Procedure AgencyNews WhiteHouseNews MassachusettsNews