Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—N.D. Cal.: Three funding provisions of Trump executive orders aimed at DEI, “gender ideology” preliminarily enjoined, (Jun 13, 2025)

By Justin Marcus Smith, J.D.

Among other things, the court held the funding provisions were not directed towards advancing any legitimate objectives embedded within the programs they burdened—as appropriated and determined by Congress—they were directed instead toward disfavored speech.

Three of nine challenged funding provisions of three presidential executive orders putatively aimed at rolling back DEI and “gender ideology” reflected an effort, in the opinion of the federal district court in Oakland, California, to “censor constitutionally protected speech and services promoting DEI and recognizing the existence of transgender individuals.” The court reasoned the three challenged provisions that qualified for preliminary injunctive relief directly contravened the statutory funding of the LGBTQ and transgender organizations that filed the complaint, at least some of which were Federally Qualified Health Centers (FQHCs). The court held the organizations had standing to challenge four of nine provisions, but they only showed a likelihood of success on three that implicated statutory funding. The court denied the government’s request for a stay pending appeal or else an administrative stay pending emergent appeal. The court ordered the LGBTQ and transgender organizations to file a proposed form of order for injunctive relief consistent with the court’s written opinion (San Francisco A.I.D.S. Found. v. Trump, No. 4:25-cv-01824-JST (N.D. Cal. Jun. 9, 2025)).

Background. A group of nonprofit organizations (the organizations) holding themselves out as providers of healthcare, social services, and advocacy for LGBTQ communities, including transgender individuals, sued President Trump, the United States Department of Justice (DOJ), the Office of Federal Contract Compliance Programs (OFCCP), and numerous other executive departments and associated directors, including Attorney General Pamela Bondi (collectively, the government).

The organizations, which included the San Francisco Aids Foundation (SFAF) and other organizations the court described in detail, challenged a total of nine provisions spanning three executive orders putatively aimed at rolling back diversity, equity, and inclusion (DEI) programs and other initiatives characterized as promoting “gender ideology.”

The executive orders implicated were:

• The “Gender Order”: E.O. No. 14168, 90 Fed. Reg. 8650 (Jan. 20, 2025), “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”;

• The “DEI-1 Order”: E.O. 14151, 90 Fed. Reg. 8339 (Jan. 20, 2025), “Ending Radical and Wasteful Government DEI3 Programs and Preferencing”;

• The “DEI-2 Order”: E.O. 14173, 90 Fed. Reg. 8633, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”;

According to the court’s written opinion, the organizations “rely heavily on federal funding” to carry out their missions, hence the E.O. provisions forced them to “choose between their constitutional rights and their continued existence.” The organizations moved to preliminarily enjoin nine provisions of the three executive orders in question.

Standing. Of the nine challenged provisions, the court found the nonprofits demonstrated likely standing to challenge:

• the “Certification Provision”: Section 3(b)(iv)(A)-(B) of the DEI-2 Order, requiring them to certify they do not operate any programs promoting DEI that violate any applicable federal anti-discrimination laws;

• the “Equity Termination Provision”: Section 2(b)(i) of the DEI-1 Order, directing agencies to terminate funding for all “equity-related grants or contracts.”

• the “Gender Termination Provision” and “Gender Promotion Provision”: Sections 3(e), (g) of the Gender Order, commanding agencies to terminate funding for any programs that “promote gender ideology.”

The court reasoned that the latter three provisions, all of which were funding provisions, reflected an effort to “censor constitutionally protected speech and services promoting DEI and recognizing the existence of transgender individuals.” The court said these three challenged provisions directly contravened the statutory funding of the organizations.

Likelihood of success. Beyond standing, the court held that the organizations had a likelihood of success on the merits that the Equity Termination Provision, Gender Termination Provision, and Gender Promotion Provision violate their rights under, variously, the First Amendment, Fifth Amendment, and the Separation of Powers.

In the court’s view, the “censorious purpose” of the funding provisions and their broad application to all recipients of federal funding prohibited a substantial amount of protected speech, thus pointing to a likelihood of success on the organizations’ facial first amendment challenge. See United States v. Hansen, 599 U.S. 762, 770 (2023); see also United States v. Williams, 553 U.S. 285, 292 (2008)).

The court also found the organizations were likely to succeed on the merits of their Fifth Amendment vagueness challenge to the Equity Termination Provision, both facial and as-applied, for lack of clearly defined prohibitions giving fair notice, with attendant risk of arbitrarily suppressing rights under the First Amendment.

The organizations also showed a likelihood of success on their claim that the Equity Termination Provision violates the Separation of Powers as applied to the grants the organizations received under the Ryan White Program, the Housing Opportunities for People with AIDS (HOPWA) program, and insofar as two of the organizations were Federally Qualified Health Centers (FQHCs) (Asian and Pacific Islander Wellness Center, Inc. d/b/a San Francisco Community Health Center (SFCHC); and, Los Angeles LGBT Center (LA LGBT Center). The organizations also showed a likelihood of success on their claim that the Gender Termination Provision and Gender Promotion Provision violate the Separation of Powers by contravening the antidiscrimination provisions of the Affordable Care Act (ACA) and Public Health Service Act (PHSA).

However, the court found the organizations did not demonstrate a likelihood of success on the merits with respect to the Certification Provision. The court held the organizations did not show, at this juncture, that the Certification Provision went beyond targeting DEI programs that violate federal antidiscrimination law.

Relief granted. The court accordingly granted the organizations’ motion to preliminarily enjoin the executive branch from enforcing the Equity Termination Provision, Gender Termination Provision, and Gender Promotion Provision against them. The court partly granted the organization’s motion consistent with the court’s written discussion. The court directed the organizations to file a proposed form of preliminary injunction order.

Relief denied. The court denied the organizations’ motion to enjoin the enforcement of:

• the “Certification Provision”: Section 3(b)(iv)(A)-(B) of the DEI-2 Order;

• the “Intimate Spaces Provision”: Section 4(d) of the Gender Order;

• the “List Provision”: Section 2(b)(ii)(C) of the DEI-1 Order;

• the “DEIA Principles Provision”: Section 3(c)(ii) of the DEI-2 Order; and,

• the “Enforcement Threat Provision”: Section 4(b) of the DEI-2 Order.

Stay denied. The court denied the government’s requests for a stay pending appeal or, in the alternative, a 7-day administrative stay to permit the government to seek an emergency expedited stay from the court of appeals.

The court said the requests were “procedurally improper” because they called for a motion. See Fed. R. Civ. P. 7(b)(1). Beyond that, the court denied a stay because it found the organizations were likely to succeed on the merits, hence, conversely, the government was unlikely to succeed on the merits. The court explained further that the government also did not make a showing of irreparable injury pending appeal.

The court also specifically denied an administrative stay because the point would be to preserve the status quo, whereas the court had already found a preliminary injunction was necessary to alter the status quo and thus address the irreparable, existential harm the organizations were facing, with respect to funding, absent an injunction.

Parallel actions. The court referenced and described similar cases challenging various provisions of the orders challenged here, including:

• National Association of Diversity Officers in Higher Education v. Trump, No. 25-cv-333;

• Chi. Women in Trades v. Trump, No. 25-cv-2005;

• PFLAG, Inc. v. Trump, No. CV 25-337;

• Nat’l Urb. League v. Trump, No. CV 25-471.

The case is No. 4:25-cv-01824-JST.

Judge: Tigar, J.

Attorneys: Camilla B. Taylor (Lambda Legal Defense and Education Fund) for San Francisco A.I.D.S. Foundation, Gay Lesbian Bisexual Transgender Historical Society, San Francisco Community Health Center [Asian Pacific Islander], Los Angeles LGBT Center, Lesbian and Gay Community Services Center d/b/a LGBT Community Center, Bradbury-Sullivan LGBT Community Center, Baltimore Safe Haven Corp., FORGE, Inc. and Prisma Community Care. Christopher Frederick Jeu, U.S. Department of Justice, for Donald J. Trump, U.S. Department of Justice, Pamela Bondi, U.S. Department of Labor, Vincent N. Micone, Office of Federal Contracts Compliance Programs, Michael Schloss, Office of Management and Budget, Russell T. Vought, U. S. Department of Health and Human Services, Robert F. Kennedy, Jr., U.S. Department of Housing and Urban Development, Scott Turner, National Archives and Records Administration, William Bosanko, National Endowment for the Humanities and Shelly C. Lowe.

Companies: San Francisco A.I.D.S. Foundation; Gay Lesbian Bisexual Transgender Historical Society; San Francisco Community Health Center [Asian Pacific Islander]; Los Angeles LGBT Center; Lesbian and Gay Community Services Center d/b/a LGBT Community Center; Bradbury-Sullivan LGBT Community Center; Baltimore Safe Haven Corp.; FORGE, Inc.; Prisma Community Care

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