District Judge Jon. S. Tigar of the U.S. District Court for the Northern District of California in San Francisco issued an order on June 9 granting a preliminary injunction against several provisions of three of President Trump’s executive orders adversely affecting transgender people.
The judge, who was appointed by President Barack Obama in 2013, needed no special schooling on transgender issues, having presided shortly after he was appointed over a prolonged lawsuit by a transgender California state prison inmate who was seeking gender-confirmation surgery. Judge Tigar’s decision in that case, one of his most notable rulings, led the California prison system to accelerate the release of the inmate and to formally abandon its rule against providing gender-affirming surgery to transgender inmates, the first state to adopt such a policy in order to settle a lawsuit.
This case was brought by what Judge Tigar summarized as “a group of non-profit organizations that receive federal funding to support their work providing services to ‘members of the LGBTQ communities.’” Each of the organizations receive federal funding, either through grants, or contracts, or money passing from the federal government to state or local governments and then to the organizations. The plaintiffs are represented by Lambda Legal, with attorneys from Lambda offices in Chicago, New York, Washington, and Los Angeles participating.
Under Trump’s executive orders, i ssued at the outset of his administration on Jan. 20, 2025, he ordered that it was the “policy of the United States” that there are two immutable sexes, male and female, and that “gender ideology” (i.e., the idea that people could have a gender identity different from their “biological sex” at conception) was contrary to federal policy. Consequently, Trump ordered that no federal money could be used that was contrary to these policy declarations–that could be considered to “promote” or “fund” gender ideology–and such funds would be abruptly stopped.
The plaintiffs aimed specifically at nine provisions of the orders. Judge Tigar determined that not all of the plaintiffs had standing to challenge the constitutionality of all nine provisions. Some of the provisions were directions to federal agencies to take various actions that did not immediately affect the plaintiffs, such as making lists of organizations engaged in “DEI” or “illegal DEI,” which Trump sought to ban from receiving any federal funding.
The orders themselves do not specifically define DEI or specify clearly what aspects of DEI are illegal. DEI is a commonly-used abbreviation for policies of “diversity, equity and inclusion” adopted by public or private entities. The Trump administration takes the position that any employment policy that takes account of race, religion, national origin or sex in attempting to diversify a workplace is a form of discrimination, usually against white males, whose interests the administration purports to protect.
As a result of the orders, several of the plaintiff organizations received notices from various agencies named as defendants in this case that their federal funding was being suspended or contracts terminated, for the purpose of enforcing the president’s orders. This clearly provided “standing” for those organizations to sue. Judge Tigar carefully went through the various plaintiff organizations and determined which of the challenged provisions they had standing to contest in this lawsuit.
The underlying theory of the lawsuit is that Trump’s orders, when activated and enforced by federal agencies, violate various constitutional rights of the organizations and those who rely on their services. In order to issue a preliminary injunction, Judge Tigar had to determine that the plaintiffs were likely to prevail on at least one of their constitutional arguments, and then the court’s injunctive relief would have to be directed to those agencies or their top management officials, since the court could not issue an injunction against President Trump, although it could ultimately issue a declaratory judgment concerning the constitutionality of his orders.
The government argued that this lawsuit was precluded under the Tucker Act, a federal statute providing that the U.S. Court of Federal Claims has sole jurisdiction over contract claims against the federal government. But Judge Tigar concluded that he had jurisdiction because this lawsuit was not asserting contract claims but rather was focused on the constitutionality of the president’s orders. The relief plaintiffs were seeking was not enforcement of contracts, as such, but rather halting the continuing denial of funding by agencies as directed by the president.
California is in the Ninth Circuit, where appellate precedent has decided in past litigation that discrimination based on gender identity involves a quasi-suspect class subjecting the government action to heightened scrutiny. Thus, several of the Trump order provisions, that clearly discriminate based on gender identity (although they never use that term, preferring the pejorative “gender ideology”) are considered to be unconstitutional unless the government can plausibly allege that they substantially advance an important government interest, Judge Tigar found that some of these provisions did not serve important government objectives, so likely violated equal protection under the 5th Amendment of the Bill of Right.
He also found that several of the provisions violated First Amendment freedom of speech rights of the plaintiff organizations, especially on the subject of “promoting” gender ideology, because they withhold federal subsidies for a “censorious purpose”: aiming to suppress “the dangerous ideas of ‘equality,’ ‘DEI,’ and ‘gender ideology.’” Under the First Amendment, content-based restrictions on speech are highly suspect and likely to be found to be unconstitutional.
As to the provisions banning federal contractors and grant recipients from having “illegal” DEI programs, Judge Tigar was troubled by the failure of the government to specify how such programs violated federal anti-discrimination law, concluding that a certain vagueness in some of the provisions was likely to deter plaintiffs from engaging in lawful activity consistent with their missions. However, he concluded at this stage of the litigation plaintiffs had not shown a likelihood of success on their First Amendment claim regarding the provision requiring funding recipients to “certify” that they were not promoting DEI. And turning to the Fifth Amendment Due Process clause, he found that the vagueness problem was sufficiently argued at this stage to justify preliminary relief from some of the order requirements, but not all of them. He did find plaintiffs likely to succeed in their argument that there were likely separation of powers issues with respect to some programs whose funding streams are specifically dictated by statues.
Having found a likelihood of success as to some of the constitutional claims regarding some of the provisions, it was easy for Judge Tigar to conclude that failing to provide preliminary relief would cause irreparable harm to the plaintiffs, many of whose financial viability and provision of services was seriously threatened by the suspension of funding. He also found that the “balance of harms and public interest” weighed in favor of issuing an injunction.
However, as requested by the plaintiff organizations, the preliminary injunction he will issue will be limited in scope to the plaintiff organizations, barring agency defendants from enforcing three specific challenged provisions, which he labeled the “Gender Termination Provision,” the “Gender Promotion Provision,” and the “Equity Termination Provision,” thus maintaining the flow of federal financial assistance under existing programs.
The court ordered the plaintiffs to post a “nominal bond in the amount of $1,000” that would be forfeited if, in the end, the court rules against them on the merits in a final decision. This would be to compensate the government for any losses it incurred due to the preliminary injunction. The court denied a request by the government to stay its preliminary injunction while the government appeals his ruling. He directed that the plaintiffs submit a proposed preliminary injunction order by June 13.