FTC Sues Transgender Health Nonprofit One Month After A Federal Court Called Its Investigation An Unconstitutional First Amendment Violation

from the the-ftc-hates-trans-rights dept

Last week the FTC decided to file an obviously censorial, legally baseless lawsuit against an educational non-profit in an attempt to punish the organization for its speech in a manner that is clearly way outside the bounds of the FTC’s authority. The case serves no purpose other than to punish an organization for its speech… and we know that because a court just told the FTC that last month.

Some of us still remember the executive order President Trump signed on the first day of his second term supposedly “restoring freedom of speech and ending federal censorship.” In theory, that EO said that no one working for the federal government was allowed to ever engage in or facilitate “any conduct that would unconstitutionally abridge the freedom of speech” of Americans. Of course, we’ve seen many of Trump’s closest allies do exactly that throughout this administration. From FCC Chair Brendan Carr (temporarily) shutting down Jimmy Kimmel to former Attorney General Pam Bondi getting Meta & Apple to remove groups and apps she didn’t like, this administration is the most censorial in history.

And then there’s FTC Chair Andrew Ferguson. When begging Donald Trump for the job he sent a one-pager in which he promised to end what he called Lina Khan’s “politically motivated” lawsuits, but at the very same time promised his own politically motivated lawsuits: in particular attacking those who provided support and resources for transgender individuals. Hilariously, he put this promise under the heading of “protecting freedom of speech and fighting wokeness.”

Ferguson has already received a few judicial smackdowns for infringing on the First Amendment rights of organizations. Last year, there was one in the case involving Media Matters. And then last month, there was a case involving WPATH, the World Professional Association for Transgender Health. WPATH is a non-profit that has been an important player in helping medical professionals understand transgender health and how to help transgender patients.

But Ferguson is apparently among those transphobes who seem absolutely obsessed about what genitalia other people have (which, I tend to believe is no one’s business but themselves, their consensual sexual partners, and their healthcare providers).

Anyway, Ferguson sent civil investigatory demands (CIDs, the FTC equivalent of a subpoena) to WPATH in January of this year. WPATH, rightly, went to court over this and won. Judge James Boasberg blasted the FTC for violating WPATH’s First Amendment rights with these bogus demands. Indeed, he pointed to the very recent Supreme Court ruling in First Choice Women’s Resource Centers, which our own Cathy Gellis pointed out was a strong ruling that would protect free speech in other cases. And Boasberg proved her right a week later:

WPATH has demonstrated the CID’s chilling effect on its protected speech. Its declarations describe an undercurrent of fear among staff and members following the CID: fear that “statements . . . will be misrepresented and distorted . . . if WPATH is forced to disclose internal discussions and information to the FTC,” fear that specific members will become targets, and fear that academic professionals will not openly discuss their ideas given the possibility of turnover. See ECF No. 3-6 (Scott Leibowitz Declaration), ¶¶ 38, 41; see also Radix Decl., ¶¶ 18–19 (detailing longstanding importance of confidentiality in member communications). That fear is not extrapolation to some future action: the CID demands “all Documents reflecting or constituting Communications with other organizations, institutions, or individuals regarding the development and publication of SOC 8,” and all documents “including tests, reports, studies, scientific literature, and written opinions” that WPATH relied upon to assert that pediatric-gender-dysphoria treatment is safe and effective. See CID at ECF pp. 5–6. Those two items alone encompass a vast swath of academic or research discussion in which WPATH engages. Where an agency “demands” a nonprofit’s “private member” information, it “encourage[s] groups and individuals to cease or modify protected First Amendment [activity] the government disfavors.” First Choice Women’s Res. Ctrs., Inc. v. Davenport, 608 U.S. ___, 2026 WL 1153029, at *8 (2026). The threat is all the greater when the agency seeks the substance of member communications and, in so doing, predictably stifles future speech. What is more, the CID seeks WPATH’s future communications, making the chilling effect readily discernible. See CID at ECF p. 4. WPATH is likely to succeed on this element.

The ruling is chock full of evidence that the FTC has no legitimate reason to go on this fishing expedition. And yet it has.

And, of course, this FTC doesn’t actually give a shit. It just wants to punish any pro-transgender speech. So a month after Boasberg called out how the FTC’s investigation of WPATH is obviously a violation of the First Amendment… Ferguson’s FTC decided to sue WPATH in a totally different court, this time in Fort Worth, Texas, which is where MAGA often files, knowing it’s likely to get a Trump-friendly judge who will ignore the First Amendment issues and perhaps side with the administration in support of general MAGA transphobia.

The fundamental argument is that WPATH is being unfair and deceptive to “consumers” (in this case, doctors). The evidence is that… um… [checks notes]… a number of doctors say that WPATH’s published “standards of care” [SOC] for transgender patients is useful. I only wish I were joking:

Medical professionals have also been duped. One clinician responded to the RFI by stating that “[t]he WPATH standards of care does an excellent job providing recommendations and guidelines for practices that are evidence based and expert reviewed.” Another said, “[a]s a mental health professional . . . affirming and coordinated healthcare, informed by recognized standards of care (including WPATH), provides young people and their families with stability, safety.”

OMG. Medical experts suggesting medical treatments that other doctors say is really helpful. Can’t have that! Make a federal case about it!

The FTC makes a big deal of SOC-8 (the updated standard of care doc WPATH released in 2022) as if it’s some horrible evil document. But you can read the thing yourself and realize that the FTC is lying to you. SOC-8 is quite clear that it does not advocate for specific treatment, but rather that doctors and patients determine what will be best overall for transgender patients. And, contrary to the way that transphobes characterize it, it does not push people to gender-reassignment surgery, but rather encourages doctors to make sure that patients understand their options and are mature enough to make a full decision themselves, rather than being pressured into anything.

In other words, it’s what you’d expect from a document put together over many years using a cross section of actual medical experts.

Even looking past the FTC filing what is clearly a censorial case because of their own weird gender hangups, and the fact that this is clearly a vexatious, censorial attack on WPATH’s free speech rights (as already established by one federal court), there’s another reason this case should be dead on arrival.

The FTC only has the authority to regulate commercial activity. And WPATH is a non-profit that doesn’t engage in commercial activity. TechFreedom’s Berin Szoka has a good thread on how this case should get thrown out before we even have to get to the First Amendment stuff or the merits.

Still, as with all of these kinds of cases, the process is the punishment. Ferguson doesn’t really give a shit if he wins. He just wants to make it abundantly clear that any organization that actually wants to help transgender individuals may face a vexatious investigation and/or lawsuit by the federal government.

If Donald Trump actually meant what he said in that executive order, he’d send Ferguson (and Carr) packing. But, of course, he never did. And, of course, we won’t hear a peep from any of the people who spent all four years of the Biden administration insisting that the administration was “censoring” people. It turns out none of them actually cared about free speech. They only cared about culture war and furthering their own bigotry.

Filed Under: 1st amendment, andrew ferguson, free speech, ftc, healthcare, trans rights

Companies: wpath