Judge confronts feds over vagueness of Trump’s ‘gender ideology,’ DEI orders

OAKLAND, Calif. (CN) — The San Francisco AIDS Foundation asked a judge on Thursday to prevent federal agencies from enforcing three executive orders on “gender ideology” and diversity, equity and inclusion policies, which it claims violate its due process rights, free speech and unlawfully exceed presidential authority through their unconstitutionally vague wording.

The foundation is suing the federal government over Executive Order 14168 — “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” — as well as two other executive orders on DEI policies, which it claims violate the First and 14th Amendments.

“By barring speech that the Trump administration dislikes, the executive orders penalize certain viewpoints — the greatest First Amendment sin,” the foundation argued in court documents.

In spirited arguments before U.S. District Judge Jon S. Tigar, the foundation argued that key terms like “illegal DEI” and “equity” were ill-defined and left too many questions about what practices were allowed under the government’s mandate.

When questioned by the Barack Obama appointee, the government was reluctant to answer multiple questions clarifying what it meant to promote “gender ideology” as mentioned in the order. For example, the government was hesitant to answer whether providing all-gender restrooms counted as such under the mandate.

The judge expressed his skepticism about the government’s arguments.

“To me, that sounds incredibly vague. That sounds like ‘Yeah, it’s vague, but so what?’” Tigar said.

Meanwhile, the White House defended its commitment to the new funding priorities.

“A refusal to fund is not a penalty. That’s the law of the land,” said attorney Pardis Gheibi of the U.S. Department of Justice, who represented the government.

Without a court order preventing enforcement, the foundation said that President Donald Trump’s orders threaten to chill LGBTQ organizations from mentioning or placing transgender terms in their practices on pain of losing their federal funding, claiming that even though many LGBTQ organizations are doing work that is not federally funded, many still often work with partners who are.

“Our clients know they are in the crosshairs of this administration because they have already been targeted and had their federal funding pulled,” Camilla Taylor of Lambda Legal, who represented the foundation, told the court.

Lacking an injunction, the foundation added that they would also lose their ability to provide healthcare services, possibly increasing rates of HIV, AIDS and other communicable diseases it’s worked hard to eradicate.

“If those street medicine teams stopped working, some people would lose their health, and others would lose their lives,” Taylor said.

The foundation argued that even if what the plaintiffs are doing is promoting “unlawful DEI activity,” their activity is still protected by the First Amendment until it rises to the level of incitement.

The judge did not indicate when he would rule on the motion, but the foundation said it felt “confident” about its chances.

“I’m cautiously optimistic based on our oral arguments,” Jose Abrigo of Lambda Legal told Courthouse News.

Outside the courtroom, San Francisco AIDS Foundation CEO Tyler TerMeer called the executive orders an “existential threat” to his nonprofit’s mission and said their vagueness raised confusing questions about how it should proceed going forward.

“Did it mean that we were supposed to stop using pronouns? Did we have to remove that from our email signatures, websites, grants and programs that are designed specifically to target LGBT populations?” TerMeer told Courthouse News.

TerMeer also wondered what it meant for how nonprofits serve the transgender community in San Francisco and beyond.

“Does that mean we can only now serve the LGB?” he asked. “We know that there is no ‘LGB’ without the ’T.’”

Attorneys for the Department of Justice declined to comment.

The foundation is joined in its lawsuit by eight other LGBTQ+ organizations from across the nation, including health clinics, community centers and historical societies.

The hearing brought a moderate crowd of 25 in the courtroom but amassed over 110 participants online via Zoom Workplace. The judge cautioned any audience members or press from predicting his ruling too soon.

“Nothing I say on the bench indicates how I will rule. It will be clear how I rule, when I rule,” Tigar told the courtroom.

This case was filed in the Northern District of California and heard at the Ron V. Dellums Federal Courthouse in Oakland, California.