As the New York Times reports, “Britain’s National Health Service announced on Friday that it would limit the use of puberty-suppressing drugs to children enrolled in clinical trials.” The NHS explained that “there is not enough evidence to support their safety or clinical effectiveness as a routinely available treatment.” According to the article:

After conducting evidence reviews, Finland has begun limiting who can access gender-related treatments and Sweden has restricted the use of puberty blockers and hormones to clinical trials. A Norwegian health body and the French National Academy of Medicine have also urged caution.

These actions put in stark relief the ideological extremism of the Biden administration, which is suing to block state laws that ban the use of puberty-suppressing drugs as part of Orwellian “gender affirmation” for minors.

This Daily Wire article from Friday addresses the Biden administration’s challenge to a Tennessee law that takes effect on July 1, and it discusses what it calls “an aggressive legal theory that would hold medical providers to account even if a federal judge imposes the injunction sought by the White House.” Although there is some uncertainty about the outer bounds of the theory, I will explain here why it is well founded and not at all aggressive in this particular case.

The core question here is the scope of protection that a preliminary injunction (or, for that matter, a permanent injunction that is still pending on appeal) provides its beneficiaries. To make the question more concrete: If the federal district court in the Tennessee case were to bar state officials from enforcing the Tennessee law, what risks would, say, the Vanderbilt University Medical Center be taking if it were to administer puberty-suppressing drugs to minors?

The Daily Wire quotes at length Jonathan Mitchell, author of “The Writ-of-Erasure Fallacy” and of the Texas Heartbeat Act that exposed that fallacy, as he explains that Vanderbilt “would be absolutely crazy to proceed with these treatments on the basis of an injunction.” I offer here some further analysis in support of Mitchell’s assessment.

To understand what an injunction is, and what it is not, it is helpful to start off by considering an ordinary injunction in civil litigation between private parties. Let’s say that McDonald’s (as franchisor) sues an operator of one of a McDonald’s restaurant (the franchisee) for grossly violating the terms of the franchise agreement—let’s say, by serving dog food in lieu of approved hamburgers—and seeks a preliminary injunction to shut the restaurant down. In such an instance, it would be common for the court, if it were inclined to grant the preliminary injunction, to require McDonald’s to post a bond to pay damages suffered by the restaurant operator if the operator turns out to have been complying with the franchise agreement and thus to have been wrongfully enjoined. (Federal Rule of Civil Procedure 65(c) spells out this bond, or “security,” requirement for federal courts. State laws and rules provide similar requirements for state courts.)

In our example, assume that the court awards McDonald’s a preliminary injunction, subject to a bond of $3000 per day, and that McDonald’s satisfies the bond requirement and on a daily basis refuses the restaurant operator’s plea that it be permitted to re-open. Thirty days later, after hearing testimony, the court determines that the restaurant operator was in the right all along. It dissolves the injunction and uses the bond to compensate the restaurant operator for the damages that it has suffered. It turns out that $3000 per day, or $90,000 total, doesn’t capture the full damages for that period that the restaurant operator is able to prove on its counterclaim, so the court ends up awarding the restaurant operator an additional $30,000 to cover the increment.

What this example shows is that the beneficiary of an injunction remains liable for conduct that it takes while an injunction is in effect. That is true whether or not the injunction is conditioned on a bond—and indeed whether or not the court has authority to require a bond in a particular case. The injunction does not alter the law—in this case, the principles of contract law—that governs the matter. It instead merely restrains what the enjoined party can do while the injunction is in effect. If it is ultimately determined that the injunction was mistakenly imposed, the beneficiary of the injunction is liable for its conduct while the injunction is in effect.

The same principle would apply with full force to Vanderbilt if it were to administer puberty-suppressing drugs to minors while a preliminary injunction prevents state officials from enforcing the law. Vanderbilt acts at its peril. The injunction protects it against enforcement actions by state officials in the meantime. But if the injunction is ultimately dissolved or vacated, Vanderbilt would be liable for its conduct throughout the pendency of the injunction.

The term retroactive can create some confusion here. What’s essential to understand is that because the injunction did not and could not alter the underlying law, the application of the law to punish Vanderbilt’s conduct would not be retroactive. By its terms, that law becomes effective on July 1, and an injunction against state officials would not change its effective date.

The same law, I’ll note, also gives a private right of action to minors and their parents against anyone who unlawfully administers puberty-suppressing drugs. Any injunction against the defendant state officials would not extend to these potential civil plaintiffs. That provides further confirmation that the law’s prohibitions become effective on July 1, even if state officials are barred from enforcing them. And it also illustrates another set of foolish risks that Vanderbilt would be taking if it chooses to violate those prohibitions.