In 2021, the National School Boards Association wrote a letter to Attorney General Merrick Garland painting concerned parents as domestic terrorists. This year, a trio of medical organizations urged Garland to investigate the “organizations, individuals, and entities” carrying out “coordinated attacks . . . that threaten federally protected rights to health care for patients and their families” in providing “gender-affirming” treatment.

The letter from the American Medical Association (AMA), Children’s Hospital Association (CHA), and American Academy of Pediatrics (AAP) claimed that “The attacks are rooted in an intentional campaign of disinformation, where a few high-profile users on social media share false and misleading information targeting individual physicians and hospitals, resulting in a rapid escalation of threats, harassment, and disruption of care across multiple jurisdictions.” The medical associations asked the Department of Justice to take “swift action to investigate and prosecute” individuals responsible for the alleged interference with “providing evidence-based gender-affirming care.”

In anticipation of what Garland might do in response, Tennessee Attorney General Jonathan Skrmetti, joined by 12 other state attorneys general, wrote to Garland as well, urging him not to mobilize the DOJ and FBI against parents and others critical of increasingly widespread efforts to provide chemical and surgical interventions for minors who are gender dysphoric. 

A group of de-transitioners (those who have reversed their gender transitions) sent their own letter to Garland, explaining that when they sought gender treatment, “We didn’t know better; we were young, and we trusted our doctors. Our parents were also misled.” They urged the DOJ not to “ignore the harms being carried out against countless children in the name of ‘gender affirmation . . .’ [and to] not conflate passionate criticism with violence or incitement of violence.”

Both the AGs and the de-transitioners are hoping to prevent the type of aggressive DOJ action that followed the NSBA’s letter, in which the agency worked to silence parents who voiced their objections to school boards over racially and sexually charged curricula in public schools. In a more recent but unrelated show of force, the Department has also indicted at least 13 pro-life activists for alleged violations—some of them years old—of the Freedom of Access to Clinic Entrances (FACE) Act. At the same time, it has largely ignored the more than 150 vandalizations and arsons of crisis pregnancy centers and churches that are also protected under the FACE act. While the condemnation and prosecution of legitimate threats and acts of violence are wholly appropriate, the DOJ is increasingly subject to criticisms that it is picking political sides in its enforcement of the law.

As Tennessee’s Skrmetti points out, the medical organizations’ calls to partner with leading social media platforms in acting “against speech they find unwelcome or inconvenient regarding the treatment of pediatric gender dysphoria” would, as a concerted effort by the government and private industry, potentially support a claim for conspiracy to deprive Americans of a constitutional right.

As the Supreme Court said in its landmark opinion, West Virginia Board of Education v. Barnette, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in matters of politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” This dictum should be heeded by all officials, especially those charged with impartially upholding the law.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].