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While most liberal activist federal judges are Democratic appointees, some Republican-appointed judges have strayed to the Left once they started serving on the bench. Justices Earl Warren and David Souter have certainly proven that. And now we have U.S. District Court Judge for the District of Columbia Royce C. Lamberth, appointed by President Ronald Reagan, who has a special place in his heart for transgender prisoners. Judge Lamberth issued rulings that supported transgender prisoners’ demands to be housed in the detention facilities that match their chosen gender identity rather than their biological sex and to receive gender transitioning hormone treatments at taxpayers’ expense.
On February 3, 2025, Judge Lambert issued a temporary restraining order barring the federal Bureau of Prisons (“BOP”) from transferring federal male-to-female transgender prisoners out of biological female penitentiary facilities to biological male penitentiary facilities. He subsequently turned his temporary restraining order into a preliminary injunction.
The BOP was acting pursuant to an executive order issued by President Donald Trump on January 20, 2025 (Executive Order 14168). In a section entitled “Privacy in Intimate Spaces,” the Department of Justice and the Department of Homeland Security were tasked with ensuring that “males are not detained in women’s prisons or housed in women’s detention centers.” The Bureau of Prisons is an agency of the Department of Justice.
The Prison Litigation Reform Act provides that “[t]he Bureau of Prisons shall designate the place of the prisoner’s imprisonment” and that “[n]otwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.” Judge Lambert decided to get around this clear congressional bar to his hearing the transgender plaintiffs’ complaints regarding the place of their imprisonment by invoking the Eight Amendment to the Constitution’s prohibition of “cruel and unusual punishments.”
Judge Lamberth has turned the Eight Amendment on its head. It is the biological women forced to live in close quarters with biological men claiming to be women who face a substantial risk of physical harm from rape and sexual abuse inflicted by biological male sex offenders. Requiring gender identity-based access by transgender women prisoners to single-sex incarceration facilities traditionally reserved for biological women prisoners endangers the safety of these biological women, invades their privacy, and thus subjects them to “cruel and unusual” punishment.
Judge Lamberth issued another preliminary injunction on June 3rd barring the Bureau of Prisons from implementing a separate provision of Section 4 of President Trump’s Executive Order 14168. This provision requires the Bureau of Prisons to cease providing “any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”
Judge Lambert’s preliminary injunction ruling directed the Trump administration to continue providing “gender-affirming” medical care to transgender prison inmate plaintiffs suffering from what psychologists call “gender dysphoria.” Judge Lamberth also certified a class action lawsuit against the Bureau of Prisons consisting of “all persons who are currently or will be incarcerated in BOP facilities with a current diagnosis of gender dysphoria or who receive such a diagnosis in the future.”
President Trump won a mandate in last November’s election to fulfill the campaign promises he made that were widely supported by the American people. His executive order to restore “biological truth to the federal government” is aimed at rescinding executive orders and policies of the prior administration that he reasonably concluded improperly incorporated “an identity-based, inchoate social concept” that is “unmoored from biological facts.”
Nevertheless, Judge Lamberth ruled that the transgender inmates were entitled to a preliminary injunction because the BOP, in his opinion, acted arbitrarily and capriciously in violation of the Administrative Procedure Act (APA). He criticized the Bureau of Prisons for not providing an “adequate” explanation for ceasing to provide taxpayer funded “gender affirming” care for transgender prison inmates. The fact that this executive branch bureau was implementing the executive order of the chief executive officer of the United States, which explained the scientific basis of the order that the bureau was following, didn’t satisfy Judge Lamberth. The judge cavalierly dismissed the executive order’s explanation for establishing executive branch policies that rejected distinctions based on subjective “gender identity” rather than based solely on the objective biological sex assigned at birth.
The executive order provided a simple and commonsense explanation, which seems to have eluded Judge Lamberth: “‘Gender identity’ reflects a fully internal and subjective sense of self, disconnected from biological reality and sex and existing on an infinite continuum, that does not provide a meaningful basis for identification and cannot be recognized as a replacement for sex.”
The American Psychiatric Association defines gender dysphoria as “psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity.” Treatment for those experiencing gender dysphoria “may include open-ended exploration of their feelings and experiences of gender identity and expression, without the therapist having any pre-defined gender identity or expression outcome defined as preferable to another.” Nothing in President Trump’s executive order explicitly precludes transgender inmates from receiving such psychological support from mental health care professionals assigned by the Bureau of Prisons.
Hormone treatments for gender dysphoria, on the other hand, are costly. Moreover, they pose, among other things, “a substantially increased risk of serious cardiac events, including stroke, heart attack and pulmonary embolism,” according to a study presented at an American College of Cardiology/ World Congress of Cardiology meeting.
President Trump’s executive order does not explicitly deny federal prison inmates who self-identify with the gender opposite to their biological sex the right to choose whether to pay for their hormone treatments themselves and incur the associated medical risks. But his order does mean that taxpayers should not be required to foot the bill for costly hormone treatments that could lead to serious cardiac complications, which would jeopardize the patients’ safety and further increase the BOP’s costs.
Judge Lamberth gave little weight to the argument made by the Trump administration that there is a strong “public interest in letting democratic processes play out and allowing elected leaders to effectuate their political agendas.” The judge wrote that the Administrative Procedure Act too was “the output of democratic processes,” which he claimed the Bureau of Prisons ignored in implementing President Trump’s executive order. The judge undermined this rationale, however, when he allowed the plaintiffs’ court case to proceed in federal court before exhausting all administrative remedies as required by another procedural statute.
The Prison Litigation Reform Act requires that prisoners must exhaust all available administrative remedies within the federal prison system before bringing a lawsuit in federal court with respect to prison conditions. The Supreme Court has ruled that this administrative exhaustion requirement must be strictly enforced. Judge Lamberth should have followed the Supreme Court’s direction and dismissed the transgender plaintiffs’ case as premature. Instead, he is trying to make an end run around Congress’s Prison Litigation Reform Act by manufacturing an artificial loophole and ignoring the Supreme Court’s applicable ruling in the process.
Judge Lamberth, like other liberal judges who have blocked President Trump’s various executive orders, overstepped the bounds of his judicial authority, and violated the fundamental principle of separation of powers. He decided that his policy judgment should take precedence over the duly elected president of the United States who was fulfilling a campaign promise supported by a vast majority of the American people to change prior questionable transgender-related policies. In doing so, Judge Lambert intruded upon executive authority, disregarded a congressional statute, and brushed aside a Supreme Court precedent in one fell swoop.
In sum, it is Judge Royce C. Lamberth who has acted arbitrarily and capriciously.