State of Maryland and Washington Federal Judges Enjoin Two of President Trumps Gender Identity Executive Orders

As Justice Kennedy remarked in the landmark decision striking down the Defense of Marriage Act: “The Constitution’s guarantee of equality ‘must at the very least mean that a bare [governmental] desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” Guided by this premise, Judge Lauren King of the Western District of Washington issued a preliminary injunction on February 28, 2025, enjoining enforcement of Section 4 of Executive Order 14,187 and Sections 3(e) and 3(g) of Executive Order 14,168. Judge Brendan Abell Hurson of the Maryland District Court issued a similar preliminary injunction on March 4, 2025, enjoining enforcement of Section 4 of Executive Order 14,187 and Section 3(g) of Executive order 14,168.

In early February, legal action was brought by the Attorneys General from the States of Washington, Oregon, Minnesota, and Colorado, along with three physicians in the Western District of Washington, and by Parents, Families and Friends of Lesbians and Gays (PFLAG), GLMA: Health Professionals Advancing LGBTQ+ Equality, and individual patients and their families in the District of Maryland, to enjoin two Executive Orders issued by President Trump relating to transgender health care and gender identity, as unconstitutional. Specifically, on January 20, 2025, President Trump issued Executive Order 14,168 (the “Gender Ideology EO” or the “First EO”), proclaiming that “[i]t is the policy of the United States to recognize two sexes, male and female[,]” and setting forth definitions for “Sex”, “Female”, “Male”, “Gender Ideology” and “Gender Identity” for the sole purpose of declaring how the administration will interpret federal Law. At issue in the lawsuit, it also advises federal agencies to “take all necessary steps, as permitted by law, to end the federal funding of gender ideology[]” and to “assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.”  On January 28, 2025, President Trump issued Executive Order 14,187 (the “Medical Services EO” or the “Second EO”), proclaiming that it is the policy of the United States that it will not fund, sponsor, promote, assist or support the so-called ‘transition’ of a child from one sex to another and it will rigorously enforce all laws that prohibit or limit these destructive and life-altering procedures.”  The Medical Services EO defines children to include those under 19 years of age and defines “chemical and surgical mutilation” as:

• Use of puberty blockers to delay the onset or progression of normally timed puberty in an individual who does not identify as their assigned sex at birth;
• Use of sex hormones to align an individual’s physical appearance with an identity that differs from their sex at birth;
• Surgical procedures that attempt to transform an individual’s physical appearance to align with an identity that differs from their sex at birth;
• Surgical procedures…that attempt to alter or remove an individual’s sexual organs to minimize or destroy their natural biological functions.

In addition, the Medical Services EO directs agencies that provide grants to medical institutions to immediately end the chemical and surgical mutilation of children.

The plaintiffs in the Washington action requested the Court to enjoin Sections 4 and 8(a) of the Gender Ideology EO and Sections 3(c) and (g) of the Medical Services EO as unconstitutional. The plaintiffs in the Maryland action challenged Section 4 of the Gender Ideology EO and Section 3(g) of the Medical Services EO. Connecticut Attorney General William Tong joined a coalition of 18 attorneys general in filing an amicus brief in support of the Maryland action.

The Washington court found that the physician plaintiffs lacked standing to challenge Section 8(a) of the Gender Ideology EO, but issued a preliminary injunction on February 28, 2025, for the remaining challenged sections, finding that the Executive Orders:

• Violate the separation of powers in that the President has no legal authority to unilaterally refuse to spend funds appropriated by Congress; and
• Violate the Fifth Amendment’s equal protection guarantee by treating people differently based on sex or transgender status and failing to establish an exceedingly persuasive justification for such treatment, which the government failed to do.

On March 4, 2025, the Maryland court issued a preliminary injunction for substantially the same reasons.

As to the separation of powers, Judge King found that “none of the funds received by medical institutions in the Plaintiff States have a congressionally authorized condition requiring them to refrain from the provision of gender-affirming care[,]” remarking that, “[i]nstead of ‘tak[ing] Care that [such] Laws be faithfully executed, as is his duty under the Constitution, U.S. Const. art. II, § 3,” President Trump issued two Executive Orders directing revocation of the funding for any grant recipients that ‘promote gender ideology,’ including by providing medical care for gender dysphoria.  But the President “does not have unilateral authority to refuse to spend the funds” Congress appropriates … nor can he ‘switch the Constitution on or off at will’ to advance his policy preferences[.]” Likewise, Judge Hurson found “that the challenged portions of the Executive Orders unconstitutionally intrude upon the congressional prerogative to control the public fisc.”

As to the Equal Protection Clause, the Court concluded that the Executive Orders are subject to heightened scrutiny review and could not survive that review. The Court found that the Medical Services EO’s “means are not substantially related to, and in fact undermine, its stated objective[,]” outlining several incongruities between its effects and its stated purpose. Regarding the Gender Ideology EO, the Court found that it violated the Equal Protection Clause because it was “motivated by purposeful discrimination,” and the government failed to establish any “legitimate government purpose[.]” Likewise, Judge Hurson found that “the Executive Orders’ effective ban on all gender-affirming care for those under nineteen by federally funded institutions is not substantially related to the important government interest of protecting children.”

Both courts declined to issue a stay pending appeal, requested by the government, but this request indicates that it may seek to appeal the issuance of these preliminary injunctions.

On March 5, 2025, the Health Resources and Services Administration issued a notification to HHS grant recipients regarding the preliminary injunction issued in the Washington action. The government has until March 10, 2025, to issue a similar notification regarding the preliminary injunction issued in the Maryland action.

As new developments arise, we will continue to provide updates to both our Dobbs Decision Resource Center and our Executive Orders Resource Center. In the meantime, please contact one of the lawyers in Shipman’s Health Law practice group if you have questions or need risk management guidance as the landscape of healthcare law continues to change.