Attorney General Pam Bondi Issues Guidance on DOJ Implementation of Trump Executive Orders
A memo to the DOJ suggests an outlandish legal reason to attempt to block gender affirming care for minors.
by Allison Chapman
Content Warning: This article discusses Female Genital Mutation.
On April 23rd, Attorney General Pam Bondi issued a memo to all Department of Justice employees with guidance on implementing an earlier Trump Executive Order attempting to ban gender affirming care under the age of 19. While the content of this memo is alarming, it’s important to remember that, just like an Executive Order, a memo cannot change the law. Nonetheless, the memo is likely to have consequences to the accessibility of transgender healthcare, both for youth and adults, as organizations continue to capitulate to the whims of the federal government.
Repeatedly through the memo, Bondi suggests that gender affirming care could be a violation of federal law under 18 U.S.C. § 116, the law prohibiting female genital mutilation, the practice of removing or partially removing the clitoris or vulva, typically found in societies with extreme gender inequality. “I am putting medical practitioners, hospitals, and clinics on notice.” Bondi continues, “In the United States, it is a felony to perform, attempt to perform, or conspire to perform female genital mutilation ("FGM"*) on any person under the age of 18.” Under Bondi’s outlandish interpretation of the statute, this would seem to apply to providers treating transmasculine patients only. The memo goes on to say, “I am directing all U.S. Attorneys to investigate all suspected cases of FGM—under the banner of so-called "gender-affirming care" or otherwise-and to prosecute all FGM offenses to the fullest extent possible.”
The claim that gender affirming care could even remotely reach the definition of female genital mutilation is preposterous. The World Health Organization defines FGM thus; “Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.” The effects of puberty blockers, HRT, or any surgical procedures provided to transmasculine youth do none of this.
The exceptions in 18 U.S.C. § 116(b) also explicitly exclude an operation if it “is necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner,“ which describes all of the procedures used in gender-affirming care.
Adam Herpolsheimer, a Law & Policy Analyst/Adjunct Professor at Temple University, who spoke with Assigned Media via email pointed out that while the language of the law makes it clear that gender affirming care is not what was meant by female genital mutilation. However he warned that “it’s no longer as expected that arguments based in conventional wisdom, empirical evidence, expert opinion, and whatever else can withstand the pressure of ideological arguments or moral panic.” Herpolsheimer continued, “It really depends on who the DOJ is making the argument to,” a reference to the increasing partisanship in the judiciary.
So, while theoretically transgender medicine is just as legal federally today as it was 6 months ago, based on the text of the law, the increasing partisanship of the courts paired with the extreme lawlessness of the Trump administration leads to an unavoidable uncertainty in how Bondi’s memo will be implemented at DOJ. Bondi isn’t stopping at just the federal government. She is forming a coalition of Attorney Generals to investigate transgender healthcare. Bondi said she “will partner with state attorneys general to identify leads, share intelligence, and build cases against hospitals and practitioners violating federal or state laws banning female genital mutilation and other, related practices” meaning we could see federal resources being used to assist red states in enforcing state level anti-transgender laws.
Still, the memo’s claim that current law makes it a felony to provide gender affirming care is called further into question later in the text. There, Bondi orders the Office of Legislative Affairs to draft legislation that expands the existing female genital mutilation laws “to enhance protections for children whose healthy body parts have been damaged by medical professionals practicing chemical and surgical mutilation.” If the existing law already prohibits gender affirming care under this statute which Bondi has asserted, why does the law need to change? Again, it’s unclear.
The Office of Legislative Affairs has also been directed to draft additional legislation for Congress to introduce that would “establish a long statute of limitations and retroactive liability” for healthcare providers that provide gender affirming care. Some states have already taken this route in an attempt to end gender affirming care with varying degrees of success. According to Herpolsheimer, “I think the impact of liability laws is felt more in its effect as a deterrent than as something that is actually enforced.” As of April 28th, according to the White House, this legislation has been drafted and submitted.
Bondi also ordered the “Civil Rights Division to work with the Civil Division to identify and purge all Department policies, memoranda, and publications and court filings based on WPATH guidelines.” The memo also announced that the DOJ will “pursue investigations under the False Claims Act of false claims submitted to federal health care programs for any non-covered services related to radical gender experimentation.” Bondi provides an example of “physicians prescribing puberty blockers to a child for an illegitimate reason (e.g, gender dysphoria) but reporting a legitimate purpose (i.e., early onset puberty) to the Centers for Medicare & Medicaid Services.”
It’s again important to note that no law here has changed. It has always been illegal to falsify records and submit false claims to the federal government. However, Bondi is signaling that the DOJ is going to be watching transgender clinics closely, which could have a chilling effect on the provision of care.
The Attorney General further announced that the DOJ is “eager to work with qui tam whistleblowers with knowledge of any such violations.” She goes on to explain, “The False Claims Act allows private citizens to file these actions on behalf of the government against those who have defrauded the government.” This essentially is announcing a bounty hunter program that will allow anti-trans organizations to work with so-called “whistleblowers” to sue healthcare providers on behalf of the federal government. This opens the door for anti-trans organizations to not only cause harm to transgender healthcare, but line their bank accounts as well.
In conclusion, while this memo is alarming and is a cause of concern, especially for healthcare providers who may be targeted with illegitimate action by law enforcement and the federal government, this memo does not change the law. “Providers have to decide if they want to risk consequences or not” said Herpolsheimer, “and too often, we have seen that they are unwilling to at all, so they cease all gender affirming care treatment altogether.” This memo, despite the questionable legality of its claims, will have a chilling effect on clinics and healthcare systems and cause providers to continue to cave to the demands of the Trump Administration.
Allison Chapman (she/her) is a LGBTQ+ Legislative Researcher and Transgender Advocate. Her work has been featured in publications such as Reuters, Washington Post, Slate, Truthout, and more. To learn more about her work you can visit her website https://allisonchapman.lgbt