On the first day of his second term, President Donald Trump issued an executive order requiring the Bureau of Prisons to “ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.” Issued alongside a record 26 other orders that day, it was an unsurprising development, because Trump had made this issue one of the centerpieces of his 2024 campaign.

The fate of that executive order, as well as the US Bureau of Prisons’ (“BOP”) memoranda implementing the order, is now before the Supreme Court in a case called Trump v. Kingdom. And, while this case obviously has high stakes for incarcerated transgender people specifically, the Court’s resolution of this case could potentially have far greater reach — cutting off many cis and transgender people’s access to healthcare while they are incarcerated.

That’s because one of the central questions in Kingdom — though this issue is not yet before the justices — is when the Constitution requires prisons to provide medical care to incarcerated people. In Estelle v. Gamble (1976), the Supreme Court held that the Eighth Amendment’s ban on “cruel and unusual punishments” imposes on the government an “obligation to provide medical care for those whom it is punishing by incarceration.” People in prison, after all, cannot simply drive themselves to the hospital if they get sick. If the prison does not give them adequate medical care, they will suffer untreated and potentially die.

For procedural reasons, the Court is unlikely to opine on whether Estelle requires prisons to provide gender-affirming care to trans people right away. But the question of when the Eighth Amendment requires prisons to provide medical care to incarcerated people is front and center in the Kingdom case, which means the Court could potentially use Kingdom to limit all imprisoned people’s access to healthcare — or even to undercut the Constitution’s protections against cruel and unusual punishments more broadly.

Ironically, this case also arises out of a famous political blunder by pro-trans advocates. In 2019, when then-Sen. Kamala Harris was seeking her party’s 2020 presidential nomination, the ACLU circulated a questionnaire to candidates that asked if they would use presidential authority “to ensure that transgender and nonbinary people who rely on the state for medical care — including those in prison and immigration detention — will have access to comprehensive treatment associated with gender transition, including all necessary surgical care?” 

Harris responded that she would, and also said that she “pushed the California Department of Corrections and Rehabilitation to provide gender transition surgery to state inmates” while she was state attorney general. 

Years later, during his 2024 debate with Harris, Trump claimed that the then-vice president “wants to do transgender operations on illegal aliens that are in prison.” And not long after, his opposition to gender-affirming care for trans people in prison became a key part of his campaign.

It’s unclear why the ACLU thought it was a good idea to shine a light on this issue in 2019 because, at the time, the BOP provided gender-affirming care to people in federal prison. The ACLU — which represents the pro-trans side in the Kingdom case — now argues that transgender people in federal prison have had access to at least some forms of gender-affirming care “since at least 1992.”

Indeed, Trump’s own administration concluded in a 2018 memo that the Bureau of Prisons’ “statutory mandate to provide basic medical and mental health care” to incarcerated people obligated it to provide “pharmaceutical interventions (e.g., cross-gender hormone therapy), hair removal and surgery (if individualized assessment indicates surgical intervention is applicable)” to transgender people in prison if their doctors determined that these interventions are “medically necessary care.”

In any event, regardless of why Trump fixated on cutting off trans healthcare for people in federal prison, Kingdom is now before the Court. That means that the fate of trans people in prison — and, if the Eighth Amendment issue eventually reaches the Court, all incarcerated people — is now in the hands of a Republican Court that is often hostile to trans litigants, and that has, at times, signaled that it wants to drastically roll back the scope of the Eighth Amendment.

What are the legal issues in the Kingdom case?

At least since Estelle, the Court has held that people who are incarcerated are not also sentenced to live and die without medical care. As the Court said in Brown v. Plata (2011), “a prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”

Under Estelle and Brown, transgender people often have a right to gender-affirming care during their incarceration. As the US Court of Appeals for the Ninth Circuit held in Edmo v. Corizon (2019), such a person must show that they have a “serious medical need” for such care — typically by demonstrating that the care was prescribed to them by their health provider. But the Constitution does not permit prisons to deny medically necessary care to incarcerated people.

In Kingdom, the ACLU raised this Eighth Amendment argument in the lower courts, but those lower courts ruled in favor of transgender people in prison on different, much more technical legal grounds.

For over three decades, from at least 1992 to 2025, according to the ACLU’s brief to the justices, the BOP provided at least some gender-affirming care, including hormone therapy, to transgender people. This matters because, when a federal agency changes its policies, a federal law typically requires it to “examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.” This explanation often must explain the agency’s justification for “disregarding facts and circumstances” that justified the previous policy.

Both the ACLU and the lower courts that heard Kingdom argue that the Trump administration did not comply with this obligation when it cut off care for trans people in prison. 

Among other things, the district court that heard this case determined that the administration cited “zero evidence from its own medical or mental health care professionals to support its conclusions” against providing transgender healthcare. While the Trump administration argues that providing gender-affirming care makes prisons less safe, the district court also noted that “the government has not cited a single instance of gender-affirming care giving rise to safety concerns despite having provided such care for many years.”

Is this a persuasive legal argument against the Trump administration’s new policy? I think it is. And so did three federal judges that previously heard the Kingdom case. But the fate of trans people in prison is now in the hands of a Supreme Court that rarely rules in favor of transgender litigants, and that has a history of handing down legally incoherent opinions that are inconsistent with the Court’s own precedents, and that also deny legal rights to trans people.

The current Court’s uncertain commitment to the Eighth Amendment

Because the lower courts that heard Kingdom did not rule on the Eighth Amendment question, Kingdom should not currently give the justices an opportunity to roll back Estelle. But, in the likely event that this Court rejects the ACLU’s argument that the Trump administration did not adequately explain its new policy, the case will return to the lower courts and the Eighth Amendment issue will be fully litigated — teeing up the Eighth Amendment question for the justices to decide in the near future.

This issue could arise, moreover, at the exact moment that some justices are pushing for sweeping changes to how their Court understands the term “cruel and unusual punishments.” Indeed, at least some of the Supreme Court’s recent Eighth Amendment precedents suggest that the Republican justices want a wholesale rewrite of the Court’s previous precedents laying out what constitutes cruel and unusual punishment.

Since the mid-to-late twentieth century, the Court has held that, in Chief Justice Earl Warren’s words, the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Thus, as certain forms of punishment grow more uncommon, they become more constitutionally dubious.

This “evolving standards of decency” framework is front and center in nearly every major Supreme Court decision interpreting the Eighth Amendment for the last five or six decades, including Estelle.

In Bucklew v. Precythe (2019), however, the Court’s Republican majority seemed to abandon this framework. Although decades worth of pre-Bucklew decisions established that a punishment is unconstitutional if it is considered cruel and unusual today, Bucklew suggested that a method of punishment is unconstitutional only if it “had fallen out of use” at “the time of the founding.” 

Bucklew did list some methods of punishment that fail this test, but they are things like “disemboweling” or “burning alive.”  

Thus, if taken seriously, Bucklew’s new approach to Eighth Amendment cases would dramatically expand the government’s power to impose harsh punishments. The late Justice Antonin Scalia, for example, argued that a Bucklew-like approach to the Eighth Amendment does not prohibit the government from executing most intellectually disabled offenders, and that it does not limit the government’s ability to impose excessive punishments for minor crimes.

In fairness, some of the Court’s post-Bucklew decisions are inconsistent with the framework the Court laid out in that case. So at least some of the justices who joined Bucklew may have since decided that it’s a bad idea to toss out the Court’s entire framework for Eighth Amendment cases. But Bucklew was one hell of a warning shot over the bow of the Eighth Amendment. And the mere fact that the Bucklew decision exists means that advocates for humane punishments must hold their breath any time this Court is asked whether a particular punishment is cruel and unusual.

In the worst-case scenario for people in prison, a case like Kingdom could inspire the Republican justices to overrule — or, at least, drastically limit — decisions like Estelle and Brown. That would mean that all incarcerated people, regardless of their gender identity, could lose access to medically necessary care unless the government decides to give it to them as an act of grace.

Republicans have been turning transgender athletes into a wedge issue since Idaho passed the first state ban in 2020. This year, it’s already playing a major role in midterm ads, with Democrats in competitive races almost always on the defensive. At this point, the fight doesn’t even need a trans athlete: The WNBA spent the summer at the center of a culture war over a hypothetical conflict, after two ex-NBA players declared themselves eligible for the women’s draft as a stunt. There have been no known trans women on any team, and the league confirmed it had “no immediate eligibility matters” on its hands. 

It became such a political priority in part because it polls well: Surveys show most Americans, including many otherwise Democratic-leaning voters, favor barring trans women from sports leagues. This November, though, marks the first time voters will confront the issue directly at the ballot box themselves.

Most notably, in Washington state, the public will decide whether to go further than any red-state legislature has even managed. A ballot initiative, I-638, would require every girl who wants to play school sports to first prove their sex assigned at birth, via an inspection of their reproductive anatomy or a test of their sex chromosomes or hormone levels. Competing campaigns in the state are mobilizing voters for and against the measure, which will deliver the clearest test yet of how liberal and moderate voters feel about this issue.

Twenty-seven other states have already imposed measures to restrict trans athletes from participating in girls’ and women’s sports in recent years, and the US Supreme Court ruled earlier this summer that such bans are constitutional. Yet nearly all of those bans passed through Republican-controlled legislatures, mostly in states Donald Trump won three times, and none went directly before voters. That changes this fall, not only in Washington but also with Arizona, Colorado, and Nebraska voters weighing in.

The blue-state ballot battle comes at a time when the Democratic Party is still struggling to figure out how it wants to talk about transgender athletes. Democrats have broadly supported anti-discrimination protections for trans people, but on the specific questions that have dominated the political debate — namely whether trans women and girls should play on sports teams matching their gender identity, and whether minors should have access to gender-related medical treatment — most Democrats have been reluctant to adopt clear positions, while some swing-state candidates have actively distanced themselves from the party.

But the Washington state referendum is forcing its opponents, and allied Democratic politicians, to tackle the issue head-on. And they think they may have found a way to win — by convincing even voters who agree with the ban’s goals that enforcing it will create more problems than it solves. 

What’s different about the Washington sports ban

The measure in Washington state is more far-reaching than other state bans in one key way, as it would require verification from every student seeking to join a girls’ sports team, not just those whose eligibility has been challenged. According to the text for I-638, athletes would need to document their sex assigned at birth based “only on one or more of the following: the student’s reproductive anatomy, genetic makeup, or normal endogenously produced testosterone levels.”

Opponents, organizing under the banner of No Hate in WA State, are seeking to defeat the measure by framing it as the most extreme proposal of its kind. On paper, they face an uphill battle: 73 percent of Americans told Pew last year they were uncomfortable with transgender athletes playing on teams that don’t match their assigned birth sex. Opponents are also being massively outspent by Let’s Go Washington, the PAC campaigning for the measure, which is bankrolled by the conservative hedge fund manager Brian Heywood.

But No Hate in WA State hopes the ballot text will help them show that the proposed ban on transgender athletes would be a nightmare to implement. Even if Let’s Go Washington didn’t intend the outcome, they argue, no defensible reading of I-638 could avoid the conclusion that thousands of children will face either invasive new genital exams or the loss of a spot on a girls’ team altogether because their families can’t afford the genetic or testosterone testing the initiative offers as alternatives.

“Brian Heywood’s Initiative Wants To Inspect Your Daughter’s Body” reads a typical post from the No Hate in WA State campaign account, warning the initiative would yield “medically unnecessary” and “potentially traumatizing” genital or pelvic exams.

Let’s Go Washington disputes this, saying documentation of a genital exam from any routine past checkup, including the physical performed at birth, would suffice. But more than 150,000 school-age girls in Washington lack a regular family doctor with the medical records the campaign says would already be on file, and many schools conduct sports physicals publicly in group settings, where examining a student’s reproductive anatomy would be unthinkable.

Let’s Go Washington could not connect me with an attorney willing to defend its interpretation of the legislative text on the record, though campaign spokespeople Darren Littell and Hallie Herzberg said they consulted lawyers while crafting the ballot language. “I agree with you that it should have been explicit to say, ‘Here’s all the ways in the universe that you could verify a child’s sex’ and we didn’t do that, and that’s where we are now,” Herzberg told me.

Critics of the initiative warn the campaign will stir up more anti-trans sentiment and put vulnerable students in danger. The lead supporters say I-638 is necessary to protect the “integrity and fairness” of girls’ sports, and has nothing to do with targeting trans children. “This is not being motivated because we don’t like trans kids,” Littell said. “I’ve got family members who are trans, and I still love them and care about them.”

The Washington Interscholastic Activities Association is aware of about 10 transgender middle and high schoolers who play sports, out of more than 200,000 student-athletes statewide. Since 2007, the organization has allowed trans students to play on teams that align with their gender identity, with their handbook stating once a student-athlete is granted eligibility, they do not need to seek to renew eligibility every season or school year. 

“School sports is a place where kids can belong, a place of inclusion, where they can learn to work as a team and learn dedication,” Kelsey Gellner, a pediatric nurse based in Seattle, told me. “Tens of thousands of girls will be impacted by this to purposely exclude 10 children. That’s insane.”

Some opponents doubt the measure is really about protecting competition in female sports at all. Earlier this summer, the Heritage Foundation, a conservative think tank closely aligned with the Trump administration, released a report attacking Title IX, the federal law barring sex discrimination in federally funded schools and programs. The report argues for “unwinding our current regime” and blames the law for imposing a male model of competition on women, encouraging girls toward dominance and aggression, and pulling them away from femininity and motherhood.

“Preventing girls from playing sports is the whole point,” Megan Rapinoe, a two-time World Cup champion and Olympic gold medalist, wrote in a recent op-ed lambasting the ballot measure in Washington. “Spaces that leave girls and women feeling empowered are the spaces they want to constrict — and then eliminate.” 

Bringing adult restrictions down to children

The initiative’s proponents point to alternative means of verifying sex at birth, rather than genital exams. But hormone and genetic testing, the less invasive alternatives on offer, are very unusual for minors, and typically have only been required for certain elite adult athletes. 

Earlier this summer, for example, the Women’s Tennis Association announced it would require all players to undergo genetic sex testing in order to compete on the WTA Tour, a move that came on the heels of World Athletics requiring the same for participation in the female category for world ranking competitions. The goal would be to provide blood, saliva, or a cheek swab to test for any presence of the gene associated with the Y chromosome.

These tests are expensive, though, and require specialized training that public school staff virtually never have. 

“The language in the [Washington state] measure is quite alarming because it quite literally would codify sex testing for youth athletes into law,” Anna Posbergh, a professor at the University of Illinois Department of Recreation, Sport, and Tourism, told The Cut.

I-638 doesn’t specify how these tests would work in practice or who would pay for them. The ballot measure is also silent on intersex students, whose anatomy, chromosomes, and hormones may not point to the same answer. Littell says they would leave these questions “up to the doctors and patients, and at the end of the day this is common sense.” 

I asked the Washington State Medical Association what share of primary care and family medicine practices in the state could even run genetic or hormone testing in-house, and what referrals would look like for a rural practice.

“We don’t have that level of data, unfortunately,” Graham Short, a spokesperson for WSMA, told me. He added that his association does not yet have a formal position on the ballot measure, though their policymaking delegation convenes in September and may formulate a stance then. 

The Washington State Nurses Association has come out against the proposal. Gellner, who sits on its board, said it’s been disturbing to watch the idea of sports physicals shift from checking whether a student is healthy to play — i.e., checking their muscles, joints, blood pressure, and signs of asthma — to determining “whether the child themselves is a risk.”

The state chapter of the American Academy of Pediatrics, which has not taken a formal position, asked Let’s Go Washington to stop invoking the national group in the state’s official voter pamphlet, where the campaign cites AAP guidelines on routine childhood checkups. (The campaign refused.) Dr. Erica Li, a Spokane-based pediatrician who has been Let’s Go Washington’s most vocal physician in support of the measure, insisted to me that the process outlined in I-638 just “does not pose any barriers to any female” looking to participate in school sports.

Yet other states have backed away from language like this. A 2021 Florida law signed by Republican Gov. Ron DeSantis originally had language saying that students would have to undergo a genital exam or get hormone or genetic testing if there were ever disputes over a student’s eligibility. That language sparked major controversy and was ultimately stripped from the final bill. House Republicans in Ohio also passed a bill in 2022 that would have required any student athlete whose sex was disputed to prove their sex assigned at birth through those same three options. After backlash, lawmakers removed the language from the Senate version, and put in a birth certificate requirement instead. 

A time of Democratic hesitance

Democrats have broadly supported anti-discrimination protections for trans people, but on sports specifically, the party has struggled to find agreement.

The Biden administration proposed a Title IX rule in 2023 that would have rejected blanket bans but allowed schools to restrict trans athletes’ participation in some cases, but the president never spoke about this nuanced rule publicly. Kamala Harris’s presidential campaign didn’t raise trans rights either, even as Republicans made them a centerpiece of their attacks against her. 

Democratic strategists have urged candidates to address transgender-related attacks more directly this time, but that hasn’t translated to a policy consensus. Virginia Gov. Abigail Spanberger spent millions on ads acknowledging concerns about fairness and safety in school sports, for example, although even Spanberger’s actual position on the subject remains vague. 

Nationally, as the New York Times recently reported, Sen. Ed Markey of Massachusetts appears to be the only high-profile Democrat “eagerly campaigning as a supporter of transgender rights” this cycle.

In Washington state, some prominent Democrats have come out against I-638, including five Democratic members of Congress, such as Rep. Suzan DelBene, chair of the House Democratic Caucus, and Rep. Pramila Jayapal, who chairs the Congressional Progressive Caucus. The state’s top two legislative leaders, Senate Majority Leader Jamie Pedersen and House Speaker Laurie Jinkins, have also come out against it. Gov. Bob Ferguson and Sens. Patty Murray and Maria Cantwell, though, have not publicly joined them. 

Polling thus far is unclear. A September 2025 poll of Washingtonians found 69 percent statewide support for the school-sports initiative, although the survey used language highly favorable to the measure, describing it as protecting “integrity and fairness” and did not explicitly say it would bar transgender girls from girls’ teams. 

No Hate in WA State referred me to May polling conducted by the Ballot Initiative Strategy Center, a progressive group that tracks state ballot measures. Their survey rated I-638 a toss-up, finding voters sharply divided, with 43 percent strongly in favor, 21 percent strongly opposed, 17 percent fully undecided, and another 11 to 14 percent not firmly committed. BISC said they did not have more recent polling to share.

The measure, however it ultimately goes at the ballot box, will be a verdict on how the issue is playing out beyond red states, and directly with voters. For the handful of trans students the WIAA knows about, and for every other girl who wants to play sports, November will decide something more immediate. Voter pamphlets go out in October.