Court likely to block feds' ‘gender ideology’ sex ed grant conditions

EUGENE, Ore. (CN) — A federal judge on Monday criticized the Justice Department’s interpretation of the law in a multistate challenge to the Trump administration’s cuts to sexual health grants for programs that include “gender ideology.”

A coalition of 16 states sued the Department of Health and Human Services, accusing it of forcing the states to lose critical funding for sexual health education programs or remove any references to inclusive gender identity in those programs.

“The school year has already started, the programs are in place, the hiring has been done and right now you have the states caught in a catch-22,” U.S. District Judge Ann Aiken told Justice Department attorney Susanne Luse. “You’re intervening with a set of conditions that there isn’t a body or document or set of hearings that support that interjection. It looks pretty arbitrary and capricious.”

Congress created the Personal Responsibility Education Program in 2010 and the Title V Sexual Risk Avoidance Education program in 1996. Both provide funding for sexual health education programs — programs that the states argue are now at risk due to a directive from President Donald Trump calling for agencies to restrict funding that promotes “gender ideology.”

“The impact of these ‘gender conditions’ is far from marginal,” argued Marsha Chien, an attorney with the Washington Attorney General’s Office.

The states say that losing funding for the programs will take away vital sexual health education programs from vulnerable communities and lead to poor public health outcomes like increases in unplanned pregnancies, higher rates of sexually transmitted infections and higher rates of suicide and depression. They also argue that the Trump administration made the change without relying on medically accurate information.

But the government disagreed and argued that the Department of Health and Human Services has the authority to determine medical accuracy.

“HHS has not made that determination with regard to the gender ideology programming,” Luse said.

Aiken, a Bill Clinton appointee, noted that there is no language in the statutes supporting the government’s position.

“The statute defines what is medically complete and accurate — not HHS,” Aiken said. “These funding statutes are extremely clear, there’s no ambiguity in the language and there’s no agency discretion.”

Luse said that the Health and Human Services can’t condone programming funded by the statutes if it is not authorized by the statutes. She further argued that the court can’t rely on the medical opinion the states submitted because it doesn’t meet the standard the agency needs to rely on, as it only reflects 16 states rather than the entire country.

“I think you’re missing the point,” Aiken interjected. “If you were going to make changes, you would need to do the medically accurate evaluation and process, and then take a look at making the changes. But that’s not what you did, you just made an assumption and HHS sent out additional requirements.”

Aiken also took issue with the government’s view of the statutes’ purposes, which Luse described as to “normalize the optimal health behavior of avoiding nonmarital sex” as well as abstinence and preventing pregnancy and STIs.

“The question remains, how does gender ideology comport with that purpose?” Luse asked.

Aiken responded with a question of her own, directed at the states’ attorneys.

“Is it possible that a trans youth can get pregnant? Is it possible that individuals who are nonbinary can get STIs? Is it possible that any and all of those diverse youth are in the position where, when they don’t have broad information about risks of sex, can become self-harming, suicidal or drug-affected or drug-using?” Aiken asked, followed by an explanation that she served full-time as a juvenile judge before she was appointed to the federal bench.

Luse clarified that the point she intended to make was that the “sex education is not a psychological focus” and that sticking to a purely biological explanation of sexual health is sufficient.

“Oh, for crying out loud, no. That argument makes no sense,” Aiken said. “It is all about the physical and emotional well-being of children and young people as they go through puberty and adolescence.”

Aiken pressed the government on why the court shouldn’t find that the order is blatantly discriminatory based on sex for excluding trans youth before turning attention back onto the states.

“The government doesn’t say that trans youth don’t exist in our communities, and the government doesn’t say it’s medically inaccurate for sexual health curricula to include reference to gender identities,” Chien said. “And that is because the government can’t.”

Aiken indicated she was leaning toward granting the states’ requested preliminary injunction to block the government from enforcing the grant conditions and said an order would be out soon.