Ted Eytan // Flickr

Erin In The Morning is a reader-supported publication. To receive new posts and support my work, consider becoming a subscriber.

Between the 1940s and 1950s, the House Un-American Activities Committee and Senator Joseph McCarthy’s investigations targeted Americans for their beliefs, their associations, and their speech. The mechanism was not primarily criminal prosecution—it was investigation, subpoena, and the threat of institutional destruction. Its goal was compliance through fear. That fire burned through Hollywood, through the federal government, and through universities, before finally being recognized for what it is today: one of the most extreme government overreaches in American history, wielding extraordinary powers to persecute a disfavored group. Now, the federal government is engaged in a structurally identical campaign—but this time, it is waged against transgender people and the institutions that serve them, targeting hospitals with subpoenas, threatening organizations and nonprofits with funding cuts, and hauling medical societies before kangaroo courts in an attempt to beat them into submission. And with a lawsuit filed yesterday against the World Professional Association for Transgender Health (WPATH) in a transparently forum-shopped court in Texas, the administration has turned toward its most prized target of all: the central organization that advocates for trans healthcare worldwide.

The lawsuit, brought by the FTC and the attorneys general of Texas, Alaska, Iowa, and Nebraska, alleges that WPATH has violated the FTC Act by engaging in “deceptive acts or practices in or affecting commerce”—weaponizing federal consumer protection law, statutes designed to go after companies selling snake oil and fake cancer cures. The complaint alleges that WPATH “provided the means for medical providers to make false and unsubstantiated claims to parents in order to sell pediatric medical transition services,” and that this makes them a target under consumer protection laws. This is despite the fact that WPATH sells nothing—it is a nonprofit medical advocacy organization that publishes guidelines based on its assessment of the available science, advocating for a transgender patient population that governments and medical institutions had historically forsaken. Its advocacy has led to expanded insurance coverage for transgender healthcare, recognition by every major American medical organization that gender-affirming care is legitimate medicine, and an infrastructure of clinical standards that thousands of providers rely on. For this—for succeeding in its mission—the government has deployed an unprecedented legal theory to destroy it.

Or, mostly unprecedented. During the Red Scare, the federal government targeted organizations and individuals not for crimes but for their published views. In 1949, Owen Lattimore, a professor of international relations at Johns Hopkins University, was accused by McCarthy of being "the top Russian espionage agent.” The evidence was Lattimore’s published academic writings on China policy, which McCarthy deemed too sympathetic to communism. Lattimore was indicted over testimony about his scholarly work—charges that were eventually dismissed, but not before his reputation was destroyed and he was placed on leave. The government simultaneously maintained a Hollywood blacklist that affected more than 300 people in the entertainment industry—actors, screenwriters, directors—none of whom were convicted of crimes. The government weaponized its investigatory powers specifically to make it impossible for anyone in a position of institutional influence to associate with, employ, or support people whose views ran counter to the government’s preferred ideology. This is exactly the architecture we are seeing deployed against transgender healthcare today: the government is threatening any organization that opposes its stance on transgender people, the blacklist is developing in real time, and anyone who pushes back is investigated.

So, too, is there a parallel in the choice of tribunal. During the Red Scare, McCarthy chose the Senate Permanent Subcommittee on Investigations because it gave him maximum control—everyone on the committee was sympathetic to his crusade. The FTC’s forum shopping follows the same logic. The government first targeted WPATH with subpoenas in Washington, D.C.—the natural venue for an action by a federal agency headquartered there. When that failed, when Judge Boasberg found “extensive evidence of animus and wafer-thin justifications” behind the investigation, the government did not accept its loss. Instead, it ran to the Northern District of Texas—where Trump-appointed Judge Mark Pittman and George W. Bush appointee Reed O’Connor handle virtually every civil case, and where the administration has already centralized its legal campaign against gender-affirming care. The venue justification? WPATH was originally incorporated in Texas in 1980, even though it actually operates out of Illinois and its principal place of business is in East Dundee, outside Chicago. A 46-year-old incorporation filing is the thread on which the government hangs its choice to bypass the D.C. court that already ruled against it and bring its case before a judge it knows will be sympathetic.

Not that this justification even matters, because the government is weaponizing the same forum-shopping playbook against hospitals across the country. The DOJ has been issuing criminal grand jury subpoenas to hospitals demanding lists of doctors and trans youth. When the government attempted to enforce similar subpoenas in the states where the hospitals actually operate, it lost virtually every time. So what was the tactic they used afterwards? The DOJ “based its investigation” in the Northern District of Texas—convening a grand jury there to subpoena hospitals in New York, Rhode Island, and elsewhere—specifically to land before Judge Reed O’Connor, another reliable conservative appointee. Even a federal judge acknowledged from the bench that “it’s pretty clear to me that this was shopped to Texas.” Harvard Law’s Alejandra Caraballo called it “a blatant unlawful effort by the DOJ to intimidate providers of gender affirming care to trans youth by engaging in judge and forum shopping.” The rationale is extraordinary: if you base an investigator in Texas, you can use a Texas grand jury to demand the private medical records of children treated at a hospital in Manhattan. The government lost in the courts that play fair. So it found one that wouldn’t.

This campaign extends far beyond medical organizations and doctors, but into all organizations for any perceived political or social support of transgender people people. During McCarthyism, the government did not just investigate suspected communists—it demanded that institutions purge any association with disfavored views. Federal employees were screened for loyalty. Teachers were forced to sign oaths. Libraries were pressured to remove books. The goal was not just to punish the accused but to make the ideology itself unspeakable in public life. The Trump administration is executing the same strategy against transgender people.

The administration’s latest proposed federal rule would evaluate every federal grant recipient in America—not the grants themselves, but the recipients—for promotion of “gender ideology,” defined as any acknowledgment that gender identity differs from sex assigned at birth. It has already forced the National Center for Missing and Exploited Children to erase all references to transgender people from its materials and ordered it to deadname transgender children in its missing persons reports. It pressured RAINN, the nation’s largest anti-sexual-violence organization, into removing all support for LGBTQ+ survivors. It has scrubbed federal websites of scientific studies on transgender health, removed data on transgender populations, and erased the word “transgender” from the Stonewall National Monument—the birthplace of the modern LGBTQ+ rights movement. Republican-controlled states have in some cases barred transgender teachers from classrooms. During the Red Scare, the Attorney General maintained a list of “subversive organizations.” Today, the federal government is building something just as powerful: a regulatory infrastructure that treats the mere acknowledgment of transgender people as grounds for institutional punishment.

This chapter in American history will be remembered alongside the darkest abuses of government power against disfavored groups. What is happening now to transgender people is structurally identical to those prior abuses. The administration has rejected every check on its power: when courts rule against it, it moves to friendlier courts. When medical organizations push back, it investigates them too. WPATH is its latest target. But this will not stop with WPATH. It will continue until transgender people have nowhere left to turn for care, for recognition, or for the basic dignity of being acknowledged as human beings—unless, as in every previous era of persecution, enough people recognize what is happening and say “enough.”

Erin In The Morning is a reader-supported publication. To receive new posts and support my work, consider becoming a subscriber.

From Erin In The Morning via This RSS Feed.