Primary Source: Weekly Legislative and Litigation Updates from California Justice Center (2/4/25-2/13/25)
Sorry for the delay! I was busy getting a federal lawsuit filed with my friends at the Liberty Justice Center. We are challenging California’s employer censorship law, SB 399, as an unconstitutional content-based restriction on speech. Under the new law, employers are not allowed to communicate their opinion about religious or political matters in mandatory meetings. Political matters include legislation and regulations. This means a fast food franchise owner, for example, is now prohibited from talking to their employees about how the new fast food minimum wage law led to massive layoffs and replacement of humans with robots. I will keep you posted on how things play out.
US v Skrmetti (U.S.S.C. No. 23-477)
Update: US Government notified SCOTUS that after a change in the administration, they no longer contend Tennessee’s ban on pediatric castration is unconstitutional.
Issue: Whether banning pediatric castration violates the Equal Protection clause.
This case began when private plaintiffs challenged the constitutionality of Tennessee’s SB1, which prohibits pediatric castration (referred to by activists as “gender affirming care”). Plaintiffs contend that banning pediatric castration violates the 14th Amendment’s Equal Protection Clause.
After private plaintiffs filed suit, the Biden DOJ intervened on behalf of the United States and filed its own complaint challenging the constitutionality of SB1.
In the February 7, 2025 letter, the Deputy Solicitor General states that the DOJ is not withdrawing from the case despite the government’s change in position on pediatric castration. Instead, the Solicitor General notes “the confluence of several factors counsels against seeking to dismiss its case…. The Court’s prompt resolution of the question presented will bear on many cases pending in the lower courts. Since granting certiorari last June, the Court has received full briefing and heard oral argument, including from the private plaintiffs, who have participated in this Court as respondents supporting the United States at the merits stage and who remain adverse to the state respondents in a dispute that has not become moot.”
In other words, this case has been fully briefed and argued and is awaiting a decision from SCOTUS. The Trump administration stance on castrating children is the opposite of the Biden administration’s, but despite that change in position, the US government wants to see this case resolved, and is expecting a favorable ruling from SCOTUS—that states can ban pediatric castration.
Read Heritage Foundation’s Sarah Parshall Perry’s excellent thread on this issue.
2. Attorney General Bonta Threatens Hospitals to Continue Pediatric Castration
Update: AG Bonta warned hospitals and clinics that if they stop pediatric castration, they will be sued for violating anti-discrimination laws.
Issue: Democrat Attorney Generals versus Trump Executive Orders
After California clinics announced they were losing federal funding in connection with pediatric castration services, California Attorney General Rob Bonta told California hospitals and federally-funded healthcare providers that they have an “ongoing obligation under California anti-discrimination law to provide gender affirming care” despite “confusion resulting from President Trump’s Office of Management and Budget (OMB) directive on freezing or pausing federal funding and his executive order on gender affirming care.”
Bonta’s argument is that if a hospital provides puberty blockers to children to treat precocious puberty, but denies them to a child to treat “gender dysphoria',” then the hospital is discriminating based on sex.
This is the same argument made by plaintiffs in Skirmetti. According to respondents in that case, a ban on pediatric castration “does not classify based on sex. At most, it draws lines based on age and the nature of the medical intervention. Certain medical interventions may not be administered to minors for certain purposes, but boys and girls are treated equally. Nobody under 18 in Tennessee can obtain puberty blockers, hormones, or surgery for the prohibited purposes. The law thus “treat[s] similarly situated individuals evenhandedly” and is not based on sex.”
The Trump administration has issued a number of executive orders regarding this issue (including this and this, which says: “The head of each executive department or agency (agency) that provides research or education grants to medical institutions, including medical schools and hospitals, shall, consistent with applicable law and in coordination with the Director of the Office of Management and Budget, immediately take appropriate steps to ensure that institutions receiving Federal research or education grants end the chemical and surgical mutilation of children.”)
The legal impacts are complicated, made more complex by the laundry list of cases filed against the Trump administration, but long story short is the Trump administration cannot undo by executive order anything that has been done by a congressional act. If Congress appropriated funds for the purpose of pediatric castration, then Trump cannot by executive order pull back those funds. However, there are a variety of lawful avenues that can and will be used by the administration to ensure compliance with federal laws and executive action.
As I am writing this, a federal judge in Maryland just temporarily blocked Trump’s executive order prohibiting pediatric castration in a case brought by PFLAG. It will be appealed, and we will continue to see a back and forth push between the Trump administration and blue states until the United States Supreme Court rules (and it may continue beyond that based on the insurrectiony behavior of the Democrats). The order begins on page 3 of this document.
3. Washington v. Trump (W.D. Washington, Case No. 25-cv-00244)
Update: New Case.
Issues: State Attorneys General (in NY, MN, WA, OR) suing over Trump Executive Order prohibiting federal funding of "gender affirming" care for minors have all brought variations of the same claims.
Another variation on the same theme. Democrat states are suing in a Washington district court to stop Trump’s executive order prohibiting federal funding for pediatric castration. The Democrat obsession with pediatric castration is disturbing, especially in light of the fact that they denied it was occurring for years, and are now vigorously suing to protect the right to castrate children.
Here is the Trump administration opposition brief, in which they argue the EO does not violate the separation of powers, Plaintiffs are unlikely to succeed on their Equal Protection claim, and Plaintiffs are unlikely to succeed on their Tenth Amendment claim.
Yet another excellent thread from Sarah Parshall Perry on this one.
I’m sure by the time I hit “publish,” an order will be issued by the court. Stay tuned next week for an update.
4. Trump Administration Investigation of CIF Title IX Violations
Updates: The Trump administration has launched a Title IX investigation against California Interscholastic Federation (CIF).
Issue: CIF publicly announced plans to violate federal antidiscrimination laws related to girls’ and women’s sports, including the possibility of allowing male athletes to compete in women’s sports and use women’s intimate facilities.
Executive Order Keeping Men Out of Women’s Sports states that “it is the policy of the United States to rescind all funds from educational programs that deprive women and girls of fair athletic opportunities,” and to take “all appropriate action to affirmatively protect all-female athletic opportunities and all-female locker rooms and thereby provide the equal opportunity guaranteed by Title IX of the Education Amendments Act of 1972.”
According to Acting Secretary Trainor: “CIF announced their intention[] to abide by state law as it relates to girls’ and women’s sports in violation of federal antidiscrimination laws. [California] state laws allow athletes to participate on teams based on an individual’s subjective gender identity rather than biological sex, even though biological sex is the basis for Title IX protections. State laws do not override federal antidiscrimination laws, and these entities and their member schools remain subject to Title IX and its implementing regulations.”
There you have it, in black and white. AB 1266 (discussed here) is now under attack from all angles, including private lawsuits and now federal investigations. Women and girls in California have been waiting for this day for a long time.
5. New York v. Trump (D.C. R.I. Case No. 25-cv-00039)
Update: New case, TRO issued, Order to Enforce issued, Notice of Appeal filed
Issues: Challenge by 22 Democrat States to Trump 1.27.25 OMB Directive
The Acting Director of the Office of Management and Budget issued a directive on January 27, 2025 that temporarily paused agency grant, loan, and other financial assistance programs.
The memorandum required “Federal agencies to identify and review all Federal financial assistance programs and supporting activities consistent with the President’s policies and requirements.”
The problematic part said: “to the extent permissible under applicable law, Federal agencies must temporarily pause all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be implicated by the executive orders, including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal.”
Democrat State plaintiffs in this case sued, alleging violations of the Administrative Procedure Act, Separation of Powers, Spending Clause, and Presentment. In a nutshell, federal financial obligations appropriated by Congress cannot be paused or terminated through executive order unless supported by legislation.
For example, schools violating FERPA can have their funds pulled by USDOE because there is a federal statute that says no school hiding records from parents can receive federal funding. But the President cannot issue such a broad and sweeping directive to pause all federal funding, including funds appropriated by Congress for a specific purpose, absent some justification in statute.
This case is moving very quickly. After the TRO, Democrat State plaintiffs moved for an order on enforcement of the TRO which was granted (essentially saying Trump administration has to identify specific instances of fraud to justify every freeze of federal funding), the Trump administration filed a notice of appeal with the First Circuit, then filed motions to stay the TRO which were denied by both the district court and the First Circuit.
In denying the motion for stay, the district court said “The TRO is intended to ensure that appropriated funds are paid in accordance with its respective Congressional authorizing statute—i.e., a stand-still order until the Court can quickly take evidence, hear argument, and rule on this critical issue.” But this is different from the order on enforcement of the TRO, which said the Trump administration had to identify specific instances of fraud to justify freezing funding. In my opinion, the onus should be on the recipients of federal funding to demonstrate their congressional appropriation, not on the federal government to demonstrate fraud.
On the same day, the court issued another order clarifying the TRO, saying: “The February 10, 2025 Order does not “bar both the President and much of the Federal Government from exercising their own lawful authorities to withhold funding without the prior approval of the district court.” Neither the TRO, nor the Court’s subsequent Order require the Defendants to seek “preclearance” from the Court before acting to terminate funding when that decision is based on actual authority in the applicable statutory, regulatory, or grant terms.” Now we’re getting to a place of sanity.
After all this, while notice of appeal pending, Democrat plaintiffs filed an amended complaint in the district court. I’d love to see immediate robust discovery by the Trump administration into the fraud and waste that these Democrat states, which includes California, have engaged in over the last four years.
