A federal judge in Oakland didn’t seem impressed by the justice department’s arguments as it pressed for the legality of three of President Donald Trump’s executive orders surrounding diversity, equity, and inclusion programs; equity-related grants; and gender identity. The judge is expected to issue a ruling in a couple of weeks.
As the Bay Area Reporter previously reported, LGBTQ and HIV/AIDS nonprofits, including the San Francisco AIDS Foundation and the San Francisco Community Health Center, filed suit after they acknowledged they’d received stop-work orders or termination notices for federal funds as a result of the orders.
Plaintiffs asked Judge Jon S. Tigar of the Northern District of California for a preliminary injunction to block the implementation of the orders, which threaten cuts to the nine nonprofit organizations across the United States.
Specifically, the suit challenges executive order No. 14168, which states that, “It is the policy of the United States to recognize two sexes, male and female” and defines sex as “an individual's immutable biological classification” and not a synonym for gender identity. This order on gender identity also prohibits federal contractors and grantees from recognizing and respecting their identities or advocating for their civil rights. The lawsuit also challenges executive orders Nos. 14151 and 14173, which terminate equity-related grants and prohibit federal contractors and grantees from employing diversity, equity, inclusion, and accessibility principles in their work.
The lawsuit came after federal agencies sent notices terminating federal funding to organizations serving transgender people and to entities whose work could be described as "equity-related" because they devote resources to underserved communities, address health disparities, or work to overcome systemic racism, sexism, or anti-LGBTQ bias. Some already have experienced temporary difficulties accessing their federal funds.
The other plaintiffs are the San Francisco-based GLBT Historical Society; the Los Angeles LGBT Center; Baltimore Safe Haven; FORGE Wisconsin; the Bradbury-Sullivan Community Center in Allentown, Pennsylvania; the New York City LGBT Community Center; and Prisma Community Care in Phoenix.
Tyler TerMeer, Ph.D., a gay man who is the CEO of SFAF, told the B.A.R., “Today, we stood up in defense of our trans community members, our staff, and our ability to lead with equity and justice at the heart of our mission. San Francisco AIDS Foundation refuses to be silenced or sidelined by this administration’s attempt to dismantle civil rights under the guise of policy.”
Arguing for the plaintiffs, attorney Camilla B. Taylor of Lambda Legal Defense and Education Fund said that the orders violate freedom of speech by limiting what federal contractors can say.
“With respect to speech, the three executive orders target plaintiffs based on their viewpoints in an attempt to chill expression,” Taylor said.
Asked Tigar, “Is that because they [plaintiffs] could reasonably conclude that the government thinks those actions are illegal, or because they have no way of knowing if the government considers those illegal, or something else.”
Answered Taylor, “Both, your honor.”
Taylor went further and said even if her clients were promoting DEI in non-federally-funded programs but in ways that went against the order, speech would still be chilled.
“Even if what plaintiffs are doing is promoting unlawful DEI activities, that is protected First Amendment activity – unless it arises to the level of incitement,” Taylor said.
“Plaintiffs themselves tell us they have reasonably self-censored and their speech has been chilled outside these government-funded programs.”
To give an example, Baltimore Safe Haven took the names “gender affirming and sexual wellness” out of the name of its clinic, “to eliminate the potential loss of federal funding,” Taylor said. “Most key is what the New York City LGBT Center said, which is that complying with the gender order would dismantle its very identity – rendering it incapable of serving the community it was created to support.”
As for that order on gender identity, Taylor quoted prior case law in saying, “One cannot express discrimination more directly, than to pronounce a policy that the group to which the policy is directed does not exist.”
Tigar grilled DOJ trial attorney Pardis Gheibi over what specifically would cause an agency to lose money because it was out of compliance with the orders.
Asked Tigar, “For example, would referring to someone, a client, perhaps, or an agency employee, by a pronoun other than Mr., Mrs., Miss, or Ms. promote gender ideology?”
Answered Gheibi, “I want to make something clear. Now plaintiffs are asserting that just because their entity promotes gender ideology, they’ll lose all funds, but that’s not what the executive order says.”
Interrupted Tigar, “Sorry, madam [court] reporter. Can you read my question back?”
The court reporter read the question again.
Answered Gheibi, “Under the executive order, yes, but that does not mean they automatically lose funding.”
Gheibi argued that the order means funding would be cut to specific programs that promote gender ideology, not entire agencies if there is promotion of gender ideology elsewhere in the agency. She argued, “Plaintiffs are free to have equity-related programming all they want. The question here is, ‘Is it the government that’s paying for it.?”
Asked Tigar, “What if an agency trained its employees to ask clients what pronouns they use?”
Answered Gheibi, “Yes, it would promote gender ideology, but again, is there [federal] funding going to it?”
Gheibi couldn’t name an example of a Biden administration executive action that promoted unlawful DEI programs, though she did say a policy giving favorable treatment to minority-owned businesses would be an example that would run against anti-discrimination laws.
A ruling is expected in a couple of weeks, a Lambda Legal spokesperson said after the hearing.
Lambda Legal HIV Project Director Jose Abrigo stated, “We demonstrated the existential threat posed by these orders, putting these organizations at risk of closing their doors and depriving thousands of people of critical services.”
“We asked the court to grant a preliminary injunction to block the implementation of these orders, which endanger the health and safety of many people, denying HIV medication and prevention services, housing to vulnerable communities, mental health services, health care for transgender people, and so much more,” Abrigo stated. “An injunction until the lawsuit is resolved would help them keep their doors open to continue to provide life-saving services.”
Abrigo stated that because the nonprofits offer “a lifeline to vulnerable people,” that “defunding them and forcing them to repudiate the existence of transgender people and eliminate all equity-related work discriminates against the people they serve and undermines public health, equity, and inclusion.”
“We look forward to continue defending these organizations during the next steps in this case and to ensuring that these organizations can fully fulfill their missions—without fear, without funding stripped, and securing their ability to advocate for and serve transgender people and everyone living with HIV,” Abrigo continued.
TerMeer added that SFAF is appreciative of Lambda Legal’s efforts.
“We’re deeply grateful to Lambda Legal for their fierce representation, to our co-plaintiffs for their courage, and to the court for hearing our plea for protection through a preliminary injunction. We know what’s at stake — and we will not back down. Our communities deserve nothing less than our full commitment to this fight and the lifesaving work that defines who we are.”
Roberto Ordeñana, a gay man who is executive director of the GLBT Historical Society, stated May 23, "We thank Lambda Legal, our counsel, as well as our fellow co-plaintiffs for challenging these harmful executive orders. We remain committed to continuing this fight in the weeks, months, and years to come."
"Yesterday, the GLBT Historical Society joined our co-plaintiffs for oral arguments on the preliminary injunction challenging three executive orders that seek to erase transgender, non-binary, and gender-expansive people and communities from public life, as well as defund organizations that provide life-saving services while terminating equity-related grants essential to the health and lives of underserved communities - including communities of color and people living with HIV," he stated.
Ordeñana continued, "these efforts at censorship ... go against our mission of preserving and sharing" LGBTQ history.
"Coinciding with what would have been Harvey Milk’s 95th birthday, we reflect on his sage advice during these oral arguments – hope will never be silent," he continued. "Transgender women of color, including Marsha P., Johnson, Sylvia Rivera, Felicia Flames Elizondo, and Tamara Ching – along with countless nonbinary and gender-expansive people who rose up against injustice at Stonewall and Compton’s Cafeteria here in San Francisco – have always been at the forefront of the LGBTQ+ civil rights movement and will never be forgotten or erased."
Updated, 5/23/25: This article has been updated to include comments from the GLBT Historical Society, one of the plaintiffs in the laswuit.
