The Supreme Court Is Poised to Undo a Basic Trans Right That Has Been in Place for Three Decades

Jurisprudence Photo illustration by Slate. Photos by Nomad_Soul/Adobe Stock and Spencer Platt/Getty Images. Sign up for Executive Dysfunction, a weekly newsletter that highlights one under-the-radar story about how Trump is changing the law—or how the law is pushing back—and keeps you posted on the latest from Slate’s Jurisprudence team. It’s going to be another bad year for trans rights at the Supreme Court, and this time, it may cost lives. The justices will soon consider the case of Alishea Sophia Kingdom, a transgender woman who’s incarcerated in the federal prison system. In a statement filed in court, she explains that she knew from the age of 7 that she was a girl, and when she was incarcerated, the doctors at the Federal Bureau of Prisons diagnosed her with gender dysphoria and prescribed her hormone therapy. But on Jan. 26, 2025, less than a week after Donald Trump took office, BOP staff told her she couldn’t get hormones any more. They started misgendering her, and they even removed the books with LGBTQ+ themes from the prison library. The denial of care, Kingdom says, made her gender dysphoria become incapacitating. She experienced anxiety, panic attacks, and mood swings. She can’t sleep. She began having suicidal thoughts. The ACLU filed a lawsuit on her behalf, and a federal judge entered a preliminary injunction finding that the policy was probably unlawful and directing the government to continue providing medical care while the litigation goes forward. Cathy Thompson, a psychologist and prison administrator who formerly worked for the BOP as its acting national administrator for psychology services, explained to the court that cutting off care for trans inmates is not only unhealthy but dangerous, “potentially causing attempts to self-castrate, self-harm, suicide, and aggression.” As the ACLU’s brief observes, the Trump policy is a sudden about-face for an agency that has been providing healthcare for trans inmates for decades. Before 2026, the rule has been that if you were getting hormones at the time you’re incarcerated, you’d continue to get them during your incarceration. And in 2010, the Bureau of Prisons made a new rule that prisoners could start hormone treatment in prison if it was “medically indicated.” That means hormone treatment was the policy under the first George Bush, Bill Clinton, the second George Bush, Barack Obama, Donald Trump (the first time), and Joe Biden. To Trumpists, this might all sound radical. In fact, it’s a straightforward application of a fundamental legal principle: If the government imprisons you, they have to provide for your basic medical needs. This isn’t charity, socialism, or some act of benevolence: Incarcerating someone makes them dependent on the government for their medical needs, so a toothache that would be just an annoyance in the outside world can, if untreated in prison, quickly become a form of torture. Gender dysphoria is a medical need like any other. It’s hard to express this to cisgender people who’ve never experienced it, and every trans person experiences things differently. But here’s one example: Before I had electrolysis to remove my facial hair, I hated seeing and feeling the stubble on my face. I have other things about my appearance I’d like to change. But the stubble was different. Imagine looking at the mirror and seeing ants crawling all over the lower part of your face. That’s how having stubble felt to me. So I can only imagine how it would feel to be incarcerated and barred from getting treatment. This isn’t something a society that thinks of itself as decent should do to anyone. If the Supreme Court allows the policy to take effect, it will be undermining one of our most fundamental constitutional protections. But that’s not the only principle the court will have to shred before it can uphold this policy. One of the most basic rules of government in the United States, albeit much less famous than the rule against “cruel and unusual punishment,” is the rule that government agencies’ decisions must be “reasonable and reasonably explained.” In the technical language of the law, decisions can’t be “arbitrary and capricious.” As the lower court explained in Trump v. Kingdom, “An action is arbitrary and capricious when the agency relies on inappropriate factors, fails to consider important aspects of the problem, or ignores relevant evidence.” To let the Trump policy go into effect—barring incarcerated trans people from receiving the healthcare they need—the Supreme Court is going to have to walk all over this principle, because the Trump administration’s reasons for denying people necessary medical care are no reasons at all. Instead of trying to assess whether incarcerated trans people genuinely need medical care—a question on which there is zero legitimate medical disagreement—the Trump administration portrays these denials of medical care as part of a struggle against something it calls “gender ideology.” This is not a real thing. On the day he was inaugurated, Trump signed an executive order announcing that “[f]ederal funds shall not be used to promote gender ideology.” It ordered the Justice Department to revise policies on medical care in prison and specifically to “ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.” Within a month, the BOP had banned “any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex”—and “any items that align with transgender ideology.” All of this is part of a broader campaign. Nine days after Trump took office, the federal Office of Personnel Management ordered agencies to suspend any employee “whose position description involves inculcating or promoting gender ideology,” and to get rid of any websites or documents that “inculcate or promote gender ideology.” It wasn’t ideology that made me want to claw the stubble off my own face. And it isn’t “ideology” that leads some children at the age of 3 or 4 to announce to their parents that they are girls, even though everyone has been calling them a boy, or vice versa. This is a well-documented phenomenon, even among children whose parents have never heard of transgender people and who are presumably not 3-year-old ideologues. Studies have shown that trans kids are consistent and resilient about their gender identity. But targeting a marginalized group, and pretending they’re followers of some dangerous ideology, is a strategy familiar to anyone who’s studied oppressive and totalitarian governments. The technique has been used with great effectiveness here in the United States, where segregationists and white supremacists love to describe civil rights protesters as “outside agitators” who believe in “anti-American” ideologies. During the protests that followed George Floyd’s murder, we saw a resurgence of the term being used to smear Black Lives Matter protesters. The mundane, everyday requirements of the Administrative Procedure Act are a great tool for combating this paranoid strategy for targeting the marginalized. The Trump administration’s brief to the Supreme Court, remarkably, makes no effort to claim that medical evidence supports denying healthcare to trans prisoners. Instead, it says that well-established standards of trans healthcare have been “called into serious question by medical professionals in the United States and other countries” (which is untrue, as experts explained to the lower courts) . Therefore, the brief says, in the absence of reliable evidence for trans healthcare, the BOP is justified in rejecting the advice of the doctors who work for it as merely “anecdotal.” The brief makes no mention of “gender ideology,” although it’s the driving concern in the executive order that directed this policy change. None of this is reasoned decision-making. Trans people suffer less when they get the care they need and are allowed to transition. The Supreme Court’s majority, it seems likely, will dance around this obvious truth in its determination to let the Trump administration target trans people for greater suffering. But all trans people want is what anyone should hope for: that the government, and the Supreme Court, will follow the law. Donald Trump Jurisprudence Supreme Court Transgender Incarceration LGBTQ+