On April 22, 2025, U.S. Attorney General Pam Bondi issued a memorandum entitled “Preventing the Mutilation of American Children” (“the AG Memorandum”).

Directed to all Justice Department employees, the AG Memorandum sets forth steps that the Department will take to counteract gender affirming care to treat gender dysphoria. This is the most recent step in a series of actions that the Administration has taken targeting care for transgender children and represents a significant escalation in the Administration’s enforcement efforts. 

Background

On January 20, 2025, as one of his first official acts, the president signed Executive Order 14168 entitled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (the “Gender Ideology EO”). Eight days later, the president issued Executive Order 14187, entitled “Protecting Children from Chemical and Surgical Mutilation” (the “Surgical Mutilation EO”) Broadly, the two Executive Orders (EOs) target laws and practices related to the role of transgender individuals in American society. The Surgical Mutilation EO specially addresses medication and surgical treatment for gender dysphoria and states, “[I]t is the policy of the United States that it will not fund, sponsor, promote, assist, or support the so-called ‘transition’ of a child from one sex to another, and it will rigorously enforce all laws that prohibit or limit these destructive and life-altering procedures.”

Notably, the Surgical Mutilation EO defines “child” as “an individual…under 19 years of age.” This is unusual because in all but two states, eighteen years is the age of adulthood. 

Section 8 of the Surgical Mutilation EO includes a set of directives to the Department of Justice that are carried forward in the AG Memorandum. In addition, both Executive Orders include directives to all federal agencies. 

Section 8(a) of the Surgical Mutilation EO calls on the attorney general to review enforcement of 18 U.S. Code § 116, an existing federal criminal law intended to prevent “female genital mutilation” on someone who has not attained the age of 18 years, defined in part as “any procedure performed for non-medical reasons that involves partial or total removal of, or other injury to, the external female genitalia.” When enacted, this statute was intended to prevent certain cultural practices and specifically exempts surgeries “necessary to the health of the person;” however, the administration is utilizing this law to bolster its efforts to prohibit or limit gender affirming care.    

Preliminary Injunctions

Both the Gender Ideology EO and Surgical Mutilation EO were the subject of almost immediate litigation in federal district courts in Maryland and the state of Washington. Following entry of temporary restraining orders, both courts issued preliminary injunctions after a round of briefing. The District of Maryland court issued a nationwide injunction. The District of Washington’s preliminary injunction was limited to the states of Washington, Oregon, California, and Colorado. 

Both courts enjoined various provisions of the two Executive Orders, but did not enjoin them in their entirety. And both courts then stayed the cases when the government filed notices of appeal to the Fourth Circuit Court of Appeals and Ninth Circuit Court of Appeals. The stay orders left the injunctions in place during the appeals, which are expected to take months, and allowed for further trial court proceedings if the injunctions were violated.

There were two notable developments relevant to this article in the Washington federal court case before the stay was entered.  First, the government persuaded the court not to include Section 8(a) of Surgical Mutilation EO within the scope of its injunction, arguing that there was no evidence of a credible threat of prosecution under 18 U.S. Code § 116. However, the stay order specifically held that it would not apply if there was a credible threat.  

Second, a contempt motion was filed alleging that the government was moving to implement provisions of the executive orders under the guise of following new policies: grant funding had been cut off for a research project in Washington state. The court denied the contempt motion but allowed expedited discovery to take place—after which the grant funding was restored. In its stay order, the court noted that the government had “seriously misrepresented” facts in its briefing and had adopted a “manifestly unreasonable” interpretation of the preliminary injunction. The court expressed concern that the government might “attempt to skirt” the injunction. 

The AG’s Memorandum

Citing the Surgical Mutilation EO, the AG’s Memorandum has five directives:

• Enforcement of 18 U.S. Code § 116. The AG Memorandum puts “medical practitioners, hospitals, and clinics on notice” that female genital mutilation is a felony, instructs the FBI to investigate potential criminal acts, and directs U.S. Attorneys to prosecute such acts.
• Investigation of Food, Drug, and Cosmetic Act (“FDCA”) and False Claims Act (“FCA”) violations. The Consumer Protection Branch of DOJ is tasked with investigating violations of the FDCA by manufacturers and distributors for alleged misbranding of “puberty blockers, sex hormones, or any other drug” used for a child’s “gender transition.” The Civil Division’s Fraud Section is instructed to conduct FCA investigations of “false claims submitted to health care programs for any non-covered services related to radical gender experimentation,” and cites an example of a prescription for puberty blockers for gender dysphoria being billed as prescribed for early onset puberty. Further, qui tam whistleblowers are notified that DOJ is “eager to work with” them.
• “Ending Reliance on Junk Science.” World Professional Association for Transgender Health (WPATH) Guidelines are eradicated from use by the DOJ at multiple levels.
• Federal and State Coalition. The AG Memorandum offers a partnership with states 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.”
• Promoting new legislation. The AG Memorandum describes an initiative to draft legislation creating a federal private right of action for children and parents of children who have received gender affirming care and later wish to impose liability on providers of such care.

Takeaways

Litigation over the AG Memorandum is inevitable and may start quickly. On Friday, April 25, the government filed a notice with the federal court in Washington advising it of the AG Memorandum, apparently having learned from being chastised in other cases for appearing to clandestinely attempt to circumvent court orders. The government can no longer take the position that there is no evidence of a “credible threat of prosecution under 18 U.S. Code § 116” now that the attorney general herself has given instructions to utilize it against providers of certain gender affirming care. We would expect to see an effort by plaintiffs to expand the preliminary injunction to include Section 8(a) of Surgical Mutilation EO. 

There may be other ways in which the AG Memorandum could be viewed as violating the two preliminary injunctions, resulting in additional proceedings in the two courts. And, to the extent the AG Memorandum introduces new initiatives, separate legal action against those provisions may be filed.

The AG Memorandum brings increased risk to health care providers who provide certain types of gender affirming care. Clinicians and hospitals should consult with their legal, compliance, quality, and risk departments about the implications of the new DOJ policies and initiatives on provider services. We would expect to see access to this type of care become more limited. 

In addition, the threat of FCA prosecution should encourage close review and communications of billing practices surrounding gender affirming care. It is unlikely that a court will, or even could, pre-emptively enjoin all prosecution by the DOJ at an individual case level, so providers should be especially vigilant that their billing practices are appropriate and defensible. 

Finally, providers are challenged to manage the conflict between the AG Memorandum (and related actions by HHS and other federal agencies) and laws in some states intended to protect access to gender affirming care and prohibit discrimination based on gender identity.  This federal-state conflict is the mirror image of the issue faced in restrictive states during the prior administration, when federal law was positioned to protect or even mandate the gender affirming care that laws in those states specifically restricted or prevented. The courts did not definitively resolve those conflicts over the prior four years, and some of the practical resolution was that patients travelled to states without those restrictions. Actions taken by the Department of Justice in response to the AG Memorandum may result in the more urgent need for courts to act to resolve this conflict between state and federal law.