The Care Order Still Stands

The Supreme Court has everything it needs to rule on Trump v. Kingdom. The government’s application to suspend a class-wide order on medical care for transgender federal inmates was filed on 28 September, the inmates’ opposition on 8 October and the government’s reply on Friday 9 October, according to the Court’s docket for No. 26A416. The docket lists no order of any kind, including the temporary administrative stay the Court sometimes enters while it considers an application. The order the government wants lifted, signed by Senior U.S. District Judge Royce Lamberth on 26 August, has therefore been in force without interruption for 47 days, by this publication’s count.

Courthouse News counts the application as the administration’s 41st emergency request to the justices. The Court building is closed today for Columbus Day, SCOTUSblog noted, and the justices return to the bench on Tuesday.

What the policy does

The policy is Program Statement 5260.01, “Management of Inmates with Gender Dysphoria”, which the Bureau of Prisons issued in February 2026. As Judge Justin Walker of the D.C. Circuit summarised it in a dissent last month, it makes psychotherapy the priority in treatment, ends surgery, starts no new inmates on hormone therapy and puts those already receiving hormones on an individual tapering plan. It also ends “social accommodations”, which the government’s application lists as including breast padding, chest binders, makeup and wigs, and directs the bureau, “when practicable”, to remove or confiscate those already provided. CBS News reported that mental health services continue.

The bureau says it adopted the policy in its own judgment as well as under President Trump’s executive order of 20 January 2025 on sex and gender identity, Executive Order 14168. Judge Lamberth found the policy “pretextual and reverse engineered” to carry out that order, according to the application, which disputes the finding.

Why there is an August order

The litigation is older than the policy. Three inmates sued in 2025 over the bureau’s first memoranda implementing the executive order, and on 3 June 2025 Judge Lamberth certified a nationwide class of everyone in bureau custody “with a current medical diagnosis of gender dysphoria or who receive such a diagnosis in the future”, the application records. The class is why a single order reaches every such inmate without being the kind of universal injunction the Court restricted in Trump v. CASA in 2025.

The dates follow from the Prison Litigation Reform Act. Under 18 U.S.C. § 3626(a)(2), preliminary relief in a prison-conditions case expires after 90 days unless the court makes it final. Judge Lamberth issued a preliminary injunction against the new policy on 17 June, together with a stay of the policy under the Administrative Procedure Act, and on 26 August reissued the injunction for a further 90 days, Judge Walker’s dissent explains. The government argues that reissuing the injunction this way exceeds what the statute allows. Ninety days from 26 August is 24 November, this publication’s arithmetic, so the order now before the justices has its own expiry date.

What the appeals court said

On 18 September a panel of the D.C. Circuit, Judges Robert Wilkins, Justin Walker and Bradley Garcia, refused to stay the August order. The unsigned order said the government had not shown a strong likelihood of success on whether the policy is arbitrary and capricious because the bureau “did not adequately consider its own experience providing gender-affirming care under its prior policy”, and noted that the bureau makes claims about security “without addressing whether such issues have occurred.” Nor, it said, had the government made a strong showing that the order violates the PLRA or improperly grants class-wide relief. Judge Walker would have granted the stay.

The two filings

Solicitor General D. John Sauer’s application argues that the district court contravened basic principles of administrative law by “substituting its own policy judgment for that of the agency, relying on evidence outside the administrative record, and faulting the agency for following presidential directions.” It leans on Bell v. Wolfish, the 1979 decision holding that courts should ordinarily defer to corrections officials on security “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response.” The order, it says, “prevents the application of the Executive’s chosen policy on a universal and class-wide basis.”

The inmates’ opposition, filed by lawyers from the American Civil Liberties Union and the Transgender Law Center with Li Nowlin-Sohl as counsel of record, opens: “The government asks this Court to overturn a three decades-long status quo.” It says the bureau has treated gender dysphoria with hormone therapy since at least 1992, and that the administrative record “is silent about BOP’s extensive experience providing this care.” It argues that the bureau replaced that care with psychotherapy and psychotropic medications, which its own medical director recognises treat co-existing conditions such as depression and anxiety, “not gender dysphoria itself.” It adds that the bureau has not pointed to a single security incident relating to the care.

What an application decides

The justices are not being asked whether the February policy is lawful. They are being asked whether Judge Lamberth’s order should be suspended while the D.C. Circuit hears the appeal. The government’s application relies on the Court’s per curiam order of 25 September in DHS v. League of Women Voters, No. 26A308, which said the Court has “often granted certiorari where a lower court has set aside an important federal program.” A grant would let the bureau apply the policy to every member of the class while the appeal runs. A denial would leave the order in place and decide nothing about the merits. The Court explains few of these rulings, as this publication has reported.

The Court has moved faster on another application this month. When the government asked it on Thursday to block a Fourth Circuit order in the political advertising rates dispute, Chief Justice John Roberts entered an administrative stay the same day, SCOTUSblog reported. In this case, after two weeks, the docket shows none. Until the Court acts, the order in force for the class is the one Judge Lamberth signed on 26 August.

Sources

The filing dates and the absence of any order are from the Supreme Court’s docket for No. 26A416, as checked on 12 October. The description of the policy, the June and August orders and the panel’s reasoning are from the D.C. Circuit’s order of 18 September and Judge Walker’s dissent. The class definition, the government’s arguments and quotations, and the description of social accommodations are from the government’s application; the inmates’ arguments and quotations are from their opposition. The 41st-application count is Courthouse News’s; the mental health services detail is from CBS News; the court closure and the advertising-rates stay are from SCOTUSblog. The 47-day count and the 24 November date are this publication’s arithmetic. The government’s reply of 9 October was not reviewed.