Court Orders FDA to Restore ‘Gender’ Web Pages
DC federal judge John Bates has issued a temporary restraining order (TRO) requiring FDA and the Centers for Disease Control and Prevention (CDC) to restore Web pages they removed to comply with President Donald Trump’s executive order on gender ideology that mandated the recognition of only male and female sex designations. The TRO was sought by Doctors for America (DFA), an advocacy group that says it has members in all 50 states and focuses its work on access to affordable care, community health and prevention, and health justice and equity.
Bates, who was nominated by President George W. Bush in 2001, said that when the federal Office of Personnel Management (OPM) issued a 1/29 memo with initial guidance to agencies on how to comply with the Executive Order, FDA and CDC “removed numerous Web pages and datasets.” DFA argued that its members “relied on the pages that related to current evidence and guidelines for providing clinical care, provided information to clinician-investigators on conducting clinical trials, and contained data that informed targeted public health interventions.”
The judge said the removed materials provided treatment guidance, datasets, and other information that healthcare providers used to provide treatment, conduct research, and inform public health responses on subjects such as youth risk behaviors, adolescent and school health, social vulnerability and environmental justice, HIV, contraception, assisted reproductive technologies, and how to develop clinical trials, including improving the inclusion of women and other underrepresented populations. He noted that the agencies did not provide any notice prior to the removals.
DFA said the agencies’ actions violated the Administrative Procedures Act (APA) and Bates found they would likely succeed on the merits of the case.
Attorneys for the government said DFA should not prevail on the merits because it lacks standing to bring suit, the action of removing the materials was neither an agency action nor a final agency action as defined in the APA, and DFA did not demonstrate the irreparable harm that is needed to justify a TRO.
“Each argument has substance, but none prevail,” Bates wrote.
He said his opinion documented the harm DFA members have suffered and will continue to suffer absent intervention, but the harm extends beyond its members. “DFA has also supplied declarations from doctors around the country who, although not DFA members themselves, are representative of the widespread disruption that defendants’ abrupt removal of these critical healthcare materials has caused,” Bates said. “….It bears emphasizing who ultimately bears the harm of defendants’ actions: everyday Americans, and most acutely, underprivileged Americans, seeking healthcare. If these doctors cannot provide these individuals the care they need (and deserve) within the scheduled and often limited time frame, there is a chance that some individuals will not receive treatment, including for severe, life-threatening conditions. The public has a strong interest in avoiding these serious injuries to the public health.”
He held that the government would face a “minimal burden” if required to restore the public’s access to resources which often have been available for many years. “There is nothing in either the OPM memorandum or the record, and indeed defendants proffered no information at the hearing, to suggest the restoration of the removed Web pages would pose a burden to the agencies’ ability to engage in their work,” Bates concluded. “Similarly, there is no information to suggest that restoring public access would even interfere with the agencies’ ongoing efforts to conform those resources with the President’s executive orders.”