DOJ Memo Lays Out New Ways to Attack DEI, Trans Care, Palestine, and Immigrants

The Department of Justice Civil Division issued an internal memorandum in June that got coverage in Fox News and very little attention elsewhere. The memo empowers the Civil Division – which had come under new leadership as of the week of the memo – to proactively advance several of Donald Trump’s right-wing priorities. The memo encourages the division to investigate “illegal private-sector DEI,” allegations of “antisemitism” at federally funded institutions, and health care providers and pharmacies offering trans care. It also asks the division to target sanctuary cities while finding ways to strip people of their citizenship.

The internal memo expands on the priorities and strategies already laid out publicly for the Department of Justice under Attorney General Pam Bondi. Specifically, the memo says, the Civil Division will “pursue False Claims Act violations against recipients of federal funds that knowingly violate civil rights laws” under an initiative ironically named the “Civil Rights Fraud Initiative.” These 1984-esque titles obscure the fact that the initiative is focused almost exclusively on targeting and shutting down private institutions that openly support diversity, equity, and inclusion, or that allow pro-Palestine free speech.

The memo came literally hours after the newly appointed head of the division, Brett Shumate, was sworn in. Truthout spoke with a source who saw several subpoenas already filed within weeks of the new policies being announced, and Attorney General Pam Bondi bragged on July 9 that the administration is targeting “warped ideology” with subpoenas.

Shumate is a classic Federalist Society foot soldier: as a private litigator, among other things, he represented the Alabama Association of Realtors against the government when the Centers for Disease Control and Prevention temporarily banned evictions during the height of the COVID lockdown, and he supported litigation against net neutrality.

These counter-civil-rights efforts are an unusual use of the Civil Division and are concerning to our movements across an intersection of issues: Palestine solidarity activists, anti-racist activists, trans people, immigration rights advocates, and migrants themselves will all be in the sights of a division whose charge previously had little to do with ideology.

The Civil Division (separate from the Civil Rights Division) has historically been concerned with civil litigation on behalf of the federal government in several areas, including health care fraud. Now, the memo says the feds will go after “illegal private-sector DEI preferences, mandates, policies, programs, and activities.”

The memo also instructs the division to “prioritize and maximally pursue denaturalization proceedings in all cases permitted by law and supported by the evidence” and to end sanctuary cities. An army of Federalist Society lawyers will now do the work of criminalization without actually changing criminal laws or charging people with crimes, using financial and bureaucratic punishment instead. This process is already underway, as well, with the Trump DOJ suing New York city in late July over its sanctuary city policies; but the administration also faces legal hurdles, as a similar lawsuit against Chicago has already been dismissed by a judge. The efforts at denaturalizing citizens are also in full swing, with the administration threatening that green card holders who become citizens could be stripped of citizenship for under-reporting their incomes to the IRS.

The initiative is focused on targeting and shutting down private institutions that openly support diversity, equity, and inclusion, or that allow pro-Palestine free speech.

The choice to use the Civil Division to target providers of trans care offers yet another example of the Trump administration finding new ways to further its far right ideology by abusing state power at all levels. Almost as soon as Trump took office, he issued an executive order stating that the federal government will no longer “fund, sponsor, promote, assist, or support” gender-affirming care for people under the age of 19. While this statement (and his power to execute it) are being fought in court, his administration is now pursuing multiple approaches to stopping trans care for both youth and adults.

The Civil Division’s strategy to target trans care uses the False Claims Act, which was implemented to prevent service providers from fraudulently invoicing government programs – for example, a military contractor overbilling for construction costs, or a Medicaid provider faking medical records to invoice for higher amounts. But in a novel strategy, the False Claims Act will instead be used to target the provision of services the federal government finds ideologically questionable.

The administration can use civil litigation to financially intimidate individuals and institutions who receive any federal funding, and to demand confidential medical information via court subpoena — a process that is already underway. The use of the False Claims Act means that any drug manufacturer, vendor, doctor, or nurse involved in making or prescribing medications and treatments that may support gender-affirming care could be the target of civil litigation led by the Department of Justice.

In other words, on gender-affirming care, they are changing the standards of care that have been accepted for decades and are scientifically backed up. Instead they are replacing them with made-up studies and junk science (such as claims that there is a problem with “rapid onset gender dysphoria” or that trans youth are subject to “social contagion”) and insisting that this junk science should drive policy. And now they are threatening that, if you don’t follow the new made-up standard of care, you’re defrauding the government.

This strategy is bound to intimidate gender-affirming care providers into advance compliance, or frustrate and exhaust them after the fact, even if the Justice Department doesn’t succeed at actually shutting them down. It may also make drug manufacturers afraid to keep producing and selling their products in formats that are designed for trans health.

Providers who are facing this kind of intimidation are increasingly turning to the organization where I work, Interrupting Criminalization, for support. Interrupting Criminalization’s Beyond Do No Harm network provides free consulting hours, resources, and organizing spaces for health care providers fighting against criminalization, and has developed concrete principles for getting cops, ICE, and all forms of policing out of health care. As the administration continues with novel and twisted strategies to target trans youth, we will continue our creative and adaptive resistance.