An Oregon federal judge has prohibited the Trump administration from linking sex education grants to adherence to an executive order aimed at restricting “gender ideology.”

In January, then-President Donald Trump signed Executive Order 14168, titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” This directive instructed federal agencies to withdraw funding from any programs promoting gender ideology.

Subsequently, the administration rolled out similar executive orders throughout the year. The Department of Health and Human Services (HHS) issued multiple communications in April and August, aiming to implement the administration’s stance against gender ideology.

These communications sought to compel states to eliminate references to “gender identity” from the curricula of the Personal Responsibility Education Program (PREP) and Sexual Risk Avoidance Education (SRAE), both of which are statutorily recognized as “evidence-based” sexual health education initiatives.

In response, several states, led by Washington, launched a lawsuit in late September. This legal action followed California’s denial of non-discretionary grant awards due to its refusal to expunge gender identity references from its PREP curriculum, a situation mirrored in other states facing similar threats, as detailed in the plaintiffs’ 47-page complaint.

The plaintiffs argued that HHS’s sudden prohibition of even minimal mentions of inclusive gender identity signified a “radical departure” from the programs’ historical implementation methods.

“States have implemented medically accurate, complete, and culturally appropriate sexual health education curricula that recognize and affirm gender identity,” the lawsuit reads. “Each year, HHS has approved the States’ PREP and SRAE applications. And as recently as last year, HHS mandated that PREP and SRAE programs and projects be inclusive of LGBTQIA+ youth.”

On Monday, in a 77-page opinion and order, U.S. District Judge Ann Aiken, a Bill Clinton appointee, rubbished HHS for failing “to make any factual findings on which to base” its recent about-face on terminology.

The lawsuit was largely based on numerous alleged violations of the Administrative Procedure Act (APA), the federal statute governing the behavior of federal agencies, as well as lawsuits challenging such actions.

The court agreed wholeheartedly with the plaintiffs, finding the new verboten references “arbitrary and capricious” under the APA.

The APA’s “arbitrary and capricious” standard is a term of art – and a phrase which has leapt from the statute into popular culture. In context, the term describes government actions that go too far while simultaneously eschewing formal, mandatory processes.

“HHS provides no factual findings or a reasoned basis for its decision,” Aiken explains.

To hear the Trump administration tell it, “teaching gender ideology is outside the scope of the statutory authority” because the statutes for the programs do “not explicitly mention gender ideology or identity,” and such terminology is not “relevant” to teaching sex education.

The court rejected this argument, noting the absence of several pieces of language from the statutes in question that are necessary to teaching comprehensive sexual education.

“[A]side from abstinence and contraception, the statutes do not contain a list of sexual health education topics,” Aiken goes on. “The statutes do not mention other key sex health education components such as menstrual cycles, anatomy, physiology, and sexual orientation, so relying on a non-existent list is not reasonable.”

The court goes on like this, at length:

HHS failed to consider (1) the statutory purpose and relevant statutory requirements—such as the mandate to reduce adolescent rates of STIs, including HIV, and the requirements to provide “medically accurate and complete” content and to target “high-risk youth” populations with “culturally appropriate” educational content; (2) the data on gender minority youth populations; (3) the data on youth sexual health risk behaviors; and (4) the data on interventions “proven on the basis of rigorous scientific research” to reduce sexual health risk behaviors, adolescent pregnancy, and STIs, including HIV. It is obvious that gender minority youth are at risk of pregnancy or contracting STIs…

The court, quoting a sex education expert, says “[e]veryone has a sexual orientation and a gender identity.” The opinion describes “gender minority youth” as those outside the “gender binary,” or a person who “doesn’t fit inside traditional male or female categories.”

The expert’s quote is contained at length, in a footnote that reads, in part: “Everyone has a gender identity. Most people have a gender identity that conforms with the sex they were assigned at birth. However, some individuals have a gender identity that does not conform with their sex designated at birth.”

These references and definitions are used to support the court’s finding that HHS intends to exclude “gender minority youth from the PREP and SRAE programs.” Such exclusions, the judge says, “directly” conflict with congressional requirements that sex education programs be “culturally appropriate” and “target high-risk youth.”

“The Court concludes that HHS, in imposing the Gender Conditions, acts in excess of statutory authority,” the opinion continues.

The plaintiffs also lodged various constitutional violations, including spending clause and separation of powers claims.

The Department of Justice, in turn, argued the appropriations clause gives agencies authority to “impose conditions on grant programs.”

But that’s just not so, said the judge.

“The Appropriations Clause does not provide the Executive branch a tool that it can use to thwart Congress’s will,” Aiken writes. “Quite the opposite. The Appropriations Clause is intended to check, not expand, Executive power.”

Rather, the court says, the grants at issue are parts of federal programs – and there the executive does not have discretion.

“Plaintiff States have a statutory right to the funding that Congress authorized and funded,” the opinion goes on. “The Court concludes that the Appropriations Clause provides HHS no authority to condition funds that Congress has authorized.”