In the most memorable political ad of 2024, Donald Trump pummeled Kamala Harris for pledging taxpayer money for transgender surgeries for prisoners. It was already happening. One of Trump’s Day One executive orders in 2025 told the Bureau of Prisons to put a stop to this. Almost two years into his term, the courts are blocking Trump from changing the policy. They shouldn’t.
The BOP, after spending a year developing a 3,200-page administrative record, issued new regulations in early 2026 barring inmates from access to surgical and hormone therapy treatments or “social accommodations,” such as wigs, breast padding, binders, or makeup, all of which could be confiscated. The policy would grant the affected inmates access only to mental health services and medications such as antidepressants. The BOP cited shifts in the science as well as security and prison-administration concerns.
Transgender surgeries, hormones, and attire are all things that adults are free to choose if they wish. But there are many choices that people lose in prison, where they depend upon the taxpayer to foot the bill and where the security environment can be volatile.
This being a Trump policy, a lawsuit followed. Inmates represented by the American Civil Liberties Union sued, claiming that this policy was arbitrary and capricious under the Administrative Procedure Act (APA) as well as violating other provisions of federal law and the Constitution. Judge Royce Lamberth of the U.S. District Court for the District of Columbia granted a series of preliminary injunctions against the BOP policy in June and August, and a divided panel of the D.C. Circuit declined to stay the most recent injunction. On Wednesday, in a one-line order without explanation, a 7–2 Supreme Court did the same. Only Justices Clarence Thomas and Samuel Alito dissented, also without an opinion.
The sole basis offered by the courts for the injunction is that the agency failed to do its homework under the APA. Judge Lamberth wrote: “It appears clear that the agency had made up its mind with respect to the plaintiffs’ gender-affirming care” in reaching its decision. Two judges of the D.C. Circuit ruled that the policy “is arbitrary and capricious because the [BOP] did not adequately consider its own experience providing gender-affirming care under its prior policy. . . . For example, BOP makes claims about the security impact of providing gender-affirming care without addressing whether such issues have occurred.” This sort of judicial flyspecking of executive policy, after a protracted administrative process, is harmful and especially counterproductive in the prison setting.
The courts ought to restrain the executive branch when it exceeds its authority or violates the law. But this sort of APA review simply second-guesses matters within executive discretion.
Moreover, Judge Justin Walker of the D.C. Circuit raised a serious concern, in dissent, that the strictures of the Prison Litigation Reform Act were violated by Judge Lamberth’s issuing multiple “rolling injunctions” to keep the policy frozen in place for over the statutory 90-day limit on the basis of a preliminary ruling.
The constant stream of emergency applications asking the Supreme Court to rule quickly on half-baked cases is undoubtedly wearying to the justices. Several of them have complained that the Court keeps getting asked to handle stay requests that don’t lend themselves to the kind of deliberative, carefully reasoned work in which the Court takes pride. We sympathize. But so long as district judges are serving the executive branch their own undercooked orders, the Court should send them back.