ENDOCRINE SOCIETY v. FEDERAL TRADE COMMISSION et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ENDOCRINE SOCIETY,
Plaintiff,
v.
FEDERAL TRADE COMMISSION, et al.,
Defendants.
Civil Action No. 26-512 (JEB)
MEMORANDUM OPINION
How can we know when an agency’s use of its investigative tools shifts from legitimate
to retaliatory? The Federal Trade Commission here has demanded documents from Plaintiff
Endocrine Society in connection with its investigation into the non-profit’s potential unfair-
marketing practices. In its work, the Society affirms the view that individuals can experience
gender incongruence between their biological sex and their gender identity and that gender-
affirming care can treat that incongruence. Members of the Executive Branch, including the
President, have expressed vehement disagreement with, criticism of, and vitriol toward that
message. Agencies including the FTC have taken up the President’s call to go after proponents
of gender-affirming care by rescinding grants and opening investigations.
The Society has brought this action to enjoin enforcement of the Civil Investigative
Demand served on it by the FTC and now seeks a preliminary injunction. The Court believes
that Plaintiff has established a likelihood that the CID was issued in retaliation for its First
Amendment activity and that the FTC’s purported reason for its investigation bears little
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relationship to the extensive demand it issued. As the other preliminary-injunction factors also
favor Plaintiff, the Court will grant the Motion and preliminarily enjoin the implementation or
enforcement of the CID.
I. 	Background
A. 	Factual Background
The Endocrine Society is a 501(c)(3) nonprofit organization “dedicated to accelerating
scientific breakthroughs and improving patient health and well being” in the field of
endocrinology — the science of hormones. See Endocrine Society, Our History,
https://perma.cc/ZW22-WNEY; see also ECF No. 1 (Compl.), ¶ 2. Founded in 1916, the Society
serves as a hub for scientists and medical professionals who study and treat various endocrine
disorders. See Compl., ¶¶ 2, 25. It hosts conferences and educational sessions, publishes peer-
reviewed journals, and “provides information to legislatures and regulators” relevant to policies
and positions affecting endocrinology. Id., ¶¶ 26–28. The Society boasts over 18,000 members
internationally and a staff of around 70 employees, whose work is supplemented by volunteers.
Id., ¶ 2.
Substantively, the Society educates physicians about, publishes research on, and takes
policy positions regarding “hormone-related conditions” like “diabetes, obesity, and hormone-
related cancers.” Id. The Society publishes free clinical practice guidelines on those conditions
to support medical professionals, scientists, researchers, and students in the endocrinology field.
See generally Endocrine Society, Clinical Practice Guidelines, https://perma.cc/B4GL-VTHG
(Guidelines available for adrenal conditions, reproductive issues, osteoporosis, obesity, pediatric
concerns). The Guidelines do not recommend particular treatments or products; rather, they
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offer guidance developed by panels of researchers and professionals and are the culmination of a
multiyear drafting and editing process. See Compl., ¶¶ 34–36.
One premise of the Society’s work is acceptance of the scientific and medical proposition
that some individuals feel incongruence between their gender identity and their designated
gender, which is based on their primary and secondary sex characteristics observed at birth. See
ECF No. 9-6 (Guidelines) at 3875. Such incongruence can lead to gender dysphoria, a hormone-
related condition included in the Diagnostic and Statistical Manual of Mental Disorders. See
Am. Psychiatric Ass’n, DSM-5-TR 511–13 (5th ed. 2025). That condition captures the “distress
and unease” individuals experience when their gender identity and designated gender are
mismatched. See Guidelines at 3875. The Society accepts that gender dysphoria exists, that
some individuals have the condition, and that physicians and other medical providers can treat it.
Since 2009 it has published Guidelines related to the treatment of gender dysphoria — often
called gender-affirming care — that rely on this premise. See Compl., ¶ 37. The Society has
also explicitly stated that “[t]here is a durable biological underpinning to gender identity,” which
leads to some individuals being transgender or gender diverse and some being cisgender — i.e.,
when their gender identity and designated gender match. See Endocrine Society, Transgender
Health Position Statement (2020), https://perma.cc/8PMD-2U9P.
The Trump Administration disagrees. The President has made no secret of his disdain for
the concept of gender dysphoria. During his campaign for a second term, he promised to
immediately “sign an executive order instructing every federal agency to cease the promotion of
sex or gender transition at any age.” ECF No. 9-11 (NPR Article) at 1. What followed was a
flurry of executive orders during the first few weeks of his second term. See, e.g., ECF Nos. 9-8
(Schooling Exec. Order) (issued Jan. 29, 2025); 9-9 (Minor Exec. Order) (issued Jan. 28, 2025);
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9-10 (Gender Ideology Exec. Order) (issued Jan. 20, 2025). The orders declared that “[i]t is the
policy of the United States to recognizes two sexes,” which in turn are “not changeable” and
represent “an individual’s immutable biological classification.” Gender Ideology Exec. Order at
8615. The view that individuals can maintain a gender identity that is different from the gender
associated with their sex — a view the Endocrine Society has implicitly and explicitly adopted
— was deemed harmful “gender ideology” by the Trump Administration. Id. at 8615–16.
President Trump described the recognition of gender/sex incongruity as “wrong” and
“unhealthy,” id. at 8615, the use of certain gender-affirming-care treatments for minors as
“radical” and “tragic” “mutilation,” Minor Exec. Order at 8771, and named gender ideology as
one of several “radical, anti-American,” “subversive, harmful, and false ideologies” plaguing the
country. See Schooling Exec. Order at 8853.
The trio of executive orders did not merely lambast the view that gender dysphoria is a
medical condition and the proponents of treating it. They exhorted federal agencies to put a stop
to any acknowledgment of gender dysphoria or that some individuals are transgender. See, e.g.,
Gender Ideology Exec. Order at 8615 (directing agencies to use “language and policies that
recognize women are biologically female, and men are biologically male”); id. at 8616
(“Agencies shall remove all statements . . . that promote . . . gender ideology” and “take all
necessary steps . . . to end the Federal funding of gender ideology.”). The orders directed
agencies to adopt specific policy positions, such as housing transgender women in male prisons
or detention centers, id., or excluding gender-affirming care for minors from federal health-
insurance coverage. See Minor Exec. Order at 8772. They also levied a general charge to
agencies to interpret statutes and regulations to reinforce the binary nature of sex, “assess grant
conditions” to avoid “promot[ing] gender ideology,” and rescind previously issued executive
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orders acknowledging the existence of transgender individuals. See Gender Ideology Exec.
Order at 8616–17.
Some agencies heeded the call. Former Attorney General Pam Bondi pledged to bring
gender-affirming care “to an end” and to “investigate and hold accountable” medical providers
and pharmaceutical companies that have purportedly “mis[led] the public” about gender-
affirming care. See Memorandum from the Att’y Gen. to Select Component Heads, Preventing
the Mutilation of American Children 4, 6 (Apr. 22, 2025), https://perma.cc/54NN-ARKU. The
Department of Justice accordingly issued subpoenas to hospitals, telehealth providers, and other
providers of gender-affirming care. A slew of courts has characterized those subpoenas as a
“smokescreen” for the Government’s “true objective of pressuring” providers into ceasing their
gender-affirming-care practices. In re Dep’t of Just. Admin. Subpoena No. 25-1431-030, 2026
WL 33398, at *7 (D. Colo. Jan. 5, 2026); see also QueerDoc, PLLC v. U.S. Dep’t of Just., 807 F.
Supp. 3d 1295, 1304 (W.D. Wash. 2025) (quashing subpoena on telehealth-gender-affirming-
care provider); In re Subpoena Duces Tecum No. 25-1431-016, 2025 WL 3562151, at *17 (W.D.
Wash. Sept. 3, 2025) (similar). The Department of Health and Human Services, for its part,
terminated grants supporting health initiatives for transgender individuals. See The White
House, Report to the President on Protecting Children from Surgical and Chemical Mutilation
Executive Summary (Apr. 28, 2025), https://perma.cc/Z7NY-6V9P. Other agencies issued
memoranda and letters reiterating the Administration’s position against gender-affirming care for
minors or excluded coverage for such care from federal health-insurance plans. Id.
The Endocrine Society was not free from the roving aim of executive-branch action.
HHS released a report in 2025 calling the Society’s Guidelines (along with guidance from the
World Professional Association for Transgender Health (WPATH) and the American Academy
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of Pediatrics) “very low quality” and “lacking in developmental rigour.” ECF No. 9-15 (HHS
Report) at 146–47 (quotation marks and alterations omitted). HHS later sent the Society a letter
requesting that medical organizations “immediately . . . revise medical guidelines . . . that advise
medical professionals to provide” what it called “sex-rejecting procedures” on minors. See ECF
No. 9-17 (HHS Letter) at ECF p. 3. The Department threatened to “use all authority under the
law” to “aggressively pursue any medical organization” that participates in providing or
favorably recommending gender-affirming care for minors. Id.
Enter the Federal Trade Commission. The record reflects acrimonious statements of
Commission staff and leadership toward proponents of gender-dysphoria treatment that echo the
Trump Administration’s characterizations. A position paper pitching then-Commissioner
Andrew Ferguson’s nomination pledged that he would “[f]ight back against the trans agenda” as
Chair of the FTC. See ECF No. 9-18 (Ferguson Statement) at 1. Social-media statements by
senior FTC staff evince the same sort of disdain for practitioners and supporters of gender-
affirming care. One called the journalists framing the Administration’s actions as attacks on
transgender rights “partisan morons.” ECF No. 9-21 (Joe Simonson Post). Another amplified
the claim that medical associations had “peddled the lie” that gender-affirming care could be
beneficial for minors, levying accusations of “malpractice” and a “betray[al of] their oath”
against the entities. See ECF No. 9-20 (Jon Schweppe Post).
The Endocrine Society saw the tenor of these informal statements by Commission staff
reflected in the FTC’s later formal actions. See Compl., ¶¶ 59–60. In the summer of 2025, the
FTC held a workshop entitled “The Dangers of ‘Gender-Affirming Care’ for Minors.” ECF No.
9-22 (FTC Workshop Tr.) at 1. In line with its title, the tone of the workshop was decidedly
disapproving of such care. Some participants raised concerns about the caliber of medical
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evidence used to inform gender-affirming care. See, e.g., id. at 19 (calling evidence “low
quality”); id. at 25 (concern that “bias undermines the entire process”); see generally id. at 33–35
(several critiques of evidence quality). The Society attracted commentary related to its research
and published Guidelines. Id. at 70 (calling Guidelines claim that “puberty blockers [are] fully
reversible” “untrue”); id. at 21 (claiming “poor quality of evidence” in Society’s work).
Other discussants veered into debate over the medical concept of gender dysphoria,
denouncing the very existence of “being transgender” as an “untrue claim[]” worthy of rejection.
Id. at 30; see also id. at 14 (supporting “false belief” that an individual’s gender identity can
align with their “opposite sex” constitutes “fraud”); id. at 61 (expressing need to “affirm[]
biological truth” and prevail in “battle of good versus evil”). The Society was not spared from
sweeping critiques of the “radical left-wing ideologies” that “ha[ve] taken over” the “institution
of medicine.” Id. at 23; see also id. at 33 (describing Society as “otherwise legitimate medical
organization” that “do[es] great work except in gender stuff”); id. at 44 (medical researchers and
physicians undertake “deceptive practice[s] by claiming that . . . women are actually men”).
Notably, one workshop participant recommended “conducting thorough investigations”
of medical associations because such investigations would cause groups to “start losing
members” and “lose . . . revenue streams.” Id. at 81–82. The FTC later hired that participant as
an employee. See Compl., ¶ 60. When the Commission sought public comments about
“organization[s] that recommend[] gender-affirming care” shortly thereafter, the Society saw that
move as the start of that very strategy: investigating a non-violative organization solely to cause
a loss of public support. Id. (alterations in original); see also ECF No. 9-1 (Pl. Mot.) at 29.
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B. 	Procedural History
According to Plaintiff, the FTC stepped up its campaign to winnow the resources of
gender-affirming-care proponents when it issued Civil Investigative Demands — akin to
administrative subpoenas — to the Society, WPATH, and the American Academy of Pediatrics
— the three nonprofit organizations previously deemed “the most influential sources of clinical
guidance” for gender-affirming care for minors. See Compl., ¶ 69 (quotation marks omitted);
HHS Report at 146; see also ECF No. 9-25 (CID). The Society’s CID’s stated aim is to
“determine whether [the Society] or any other Person . . . ha[s] made, or assisted others in
making, false or unsubstantiated representations or engaged in unfair practices in connection
with the marketing and advertising of Pediatric Gender Dysphoria Treatment.” CID at ECF p. 2.
To that end, it requires the Society to turn over a wide range of materials, including: 1) any
documents “relating to substantiation” for the proposition that pediatric-gender-dysphoria
treatment is safe and effective; 2) all “[c]ommunications . . . regarding the development and
publication” of the Guidelines; 3) any materials or information the Society uses in its educational
and advocacy work; and 4) the Society’s financial statements and records of payments between it
and other medical companies or hospitals. Id. at ECF p. 8. The CID requires a five-year
lookback for some requests but seeks all documents on certain topics, including the Society’s
2017 Guidelines and its 2020 Position Statement on Transgender Health, “[r]egardless of time
period.” Id. at ECF pp. 6, 8.
The Society viewed the CID as part of a “retaliatory investigation[]” to “cut off both
access to and speech about gender affirming care.” Compl., ¶ 61. The strategy worked: the
Society asserts that the CID immediately affected its ability to continue its academic and
charitable activities. It heard from volunteers and academic partners that they could no longer
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support the Society’s publishing or educational events, for fear that they would face job
repercussions for associating with a targeted organization or that they would experience further
government retaliation for their involvement. See ECF No. 9-2 (Mila Becker Declaration),
¶¶ 32–33. Members and staff raised concerns about collateral consequences or additional
retaliation when the Society informed them that a litigation hold required them to preserve
documents to fulfill the FTC’s investigative requirements; some withdrew from the Society’s
work altogether. Id., ¶ 33. The Society has had to delay publication of the next iteration of its
Guidelines because of the lost volunteer and professional support. Id., ¶ 24.
Seeking to curtail these effects, the Society reached out to the Commission to try to
narrow the scope of the CID. See Compl., ¶ 78. Discussions were fruitless, see generally id.,
¶¶ 79–82, and the Society moved to quash the CID under 15 U.S.C. § 57b-1(f)(1) and its
implementing regulations. See generally Mot. to Quash, In re Civil Investigative Demand to the
Endocrine Society Dated January 15, 2026, FTC File No. P264800 (Feb. 10, 2026),
https://perma.cc/QXS2- 8FLC. Those provisions authorize the Commission itself to review
motions to quash CIDs it has issued. See 16 C.F.R. § 2.10(c). The FTC ultimately denied the
Society’s motion. See ECF No. 32-2 (FTC Denial) (issued March 23, 2026).
Prior to receiving the Commission’s denial, the Society filed suit in this Court against the
FTC, as did the other two nonprofit recipients of similar CIDs. See Compl. (filed Feb. 17, 2026);
see also Am. Acad. of Pediatrics v. FTC, No. 26-508 (D.D.C. Feb. 17, 2026) (before Judge
Cooper); World Pro. Ass’n for Transgender Health v. FTC, No. 26-532 (D.D.C. Feb. 18, 2026)
(before this Court). It cited the ongoing harm to the Society’s work and its members and sought
judicial relief in the form of a preliminary injunction blocking the CID and further investigation
by the FTC related to the Society’s Guidelines and published statements on gender-affirming
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care. See Pl. Mot. at 17, 43. The FTC has opposed the Society’s Motion, see ECF No. 30 (Gov.
Opp.), and the Court held a hearing on April 7, 2026. See Minute Entry of April 7, 2026.
II. 	Legal Standard
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter
v. NRDC, 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary injunction must establish [1]
that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the
absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an
injunction is in the public interest.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)
(alterations in original) (quoting Winter, 555 U.S. at 20). “[I]f the government is the opposing
party,” the latter two factors “merge.” Glob. Health Council v. Trump, 153 F.4th 1, 12 (D.C.
Cir. 2025).
“The moving party bears the burden of persuasion and must demonstrate, ‘by a clear
showing,’ that the requested relief is warranted.” Hosp. Staffing Sols., LLC v. Reyes, 736 F.
Supp. 2d 192, 197 (D.D.C. 2010) (quoting Chaplaincy of Full Gospel Churches v. England, 454
F.3d 290, 297 (D.C. Cir. 2006)). A court “may deny a motion for preliminary injunction,
without further inquiry, upon finding that a plaintiff is unable to show either irreparable injury or
a likelihood of success on the merits,” making those two factors “particularly crucial.” Luokung
Tech. Corp. v. Dep’t of Def., 538 F. Supp. 3d 174, 182 (D.D.C. 2021) (emphasis in original)
(quotation marks omitted).
III. 	Analysis
The Court looks at each of the preliminary-injunction factors separately, spending the
lion’s share of its time on the likelihood of success on the merits. As the Court finds that
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Plaintiff’s First Amendment retaliation claim warrants preliminary relief, it need not consider its
other claims.
A. 	Likelihood of Success on Merits
The Government cites two threshold barriers that it believes impede the Society’s
chances of success on the merits of its claim — viz., jurisdiction and a lack of a valid cause of
action. After dispensing with those, the Court examines the claim itself.
1. 	Jurisdiction
The Government first contends that Congress, through the FTC Act, has “divest[ed]
district courts of their ordinary federal-question jurisdiction” over any pre-enforcement
challenges to CIDs. See Gov. Opp. at 15–16. Congress may indeed choose to consign the initial
review of challenges to agency action to the agency itself. When it establishes a “special
statutory review scheme,” that scheme “may preclude district courts from exercising jurisdiction
over challenges” that they would otherwise hear under 28 U.S.C. § 1331. Axon Enter., Inc. v.
FTC, 598 U.S. 175, 185 (2023). There is also no doubt that Congress, by way of enabling
legislation, has divested district courts of jurisdiction over certain claims and has instead
channeled those claims to an agency-review process, often followed by judicial review in a
federal appellate court. See id. (noting in such structure that “[t]he agency effectively fills in for
the district court, with the court of appeals providing judicial review”).
The existence of a statutory scheme that governs some claims, however, does not
automatically preclude district courts from exercising jurisdiction over all challenges a plaintiff
brings to agency action. Axon, 598 U.S. at 185. Courts typically consider the factors laid out in
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), which ask whether: 1) “precluding
district court jurisdiction [would] ‘foreclose all meaningful judicial review’ of the claim”; 2) the
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claim is “‘wholly collateral to the statute’s review provisions’”; and 3) the claim is “outside the
agency’s expertise.” Axon, 598 at 186 (quoting Thunder Basin, 510 U.S. at 212–13) (alterations
omitted). “When the answer to all three questions is yes, [courts] presume that Congress does
not intend to limit jurisdiction.” Id. (quotation marks omitted).
The Court does not write on a blank slate here. The FTC raised this same jurisdictional
argument before the D.C. Circuit in Media Matters, where it sought a stay of another district
court’s injunction that blocked a separate retaliatory CID. See 2025 WL 2988966, at *3 (Oct.
23, 2025). There — as here — the FTC argued that, because Media Matters’s claim concerned a
CID, it was subject to exclusive review by the Commission unless and until the FTC brought an
enforcement action in federal district court under 15 U.S.C. § 57b-1(e). Id. (recounting
Commission argument); Gov. Opp. at 16–17 (raising same argument). The FTC Act does permit
CID recipients to move to quash or modify the CID before the Commission. See 15 U.S.C.
§ 57b-1(f)(1).
In rejecting the FTC’s position, the Circuit noted in Media Matters that the FTC Act is an
uneasy fit for prior statutes that courts have interpreted to preclude district-court jurisdiction in
favor of initial agency review. Unlike the typical Thunder Basin case, where preliminary review
is consigned to the agency, with judicial review by an appellate court, “there is no dispute that
the next step for review of [Plaintiff’s] constitutional claims is in district court.” 2025 WL
298896, at *5. The FTC Act also provides minimal pre-enforcement process before the
Commission, in contrast to the multilevel agency review guaranteed to the mining companies in
Thunder Basin itself. Compare 15 U.S.C. § 57b-1 (CID provision of FTC Act), with Thunder
Basin, 510 U.S. at 207–08; see also Media Matters, 2025 WL 2988966, at *5 (noting that “Media
Matters exhausted what little Commission procedure was available” before filing suit).
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The Circuit also reasoned that the Thunder Basin framework was inapposite to a First
Amendment retaliation claim when a party has already incurred harm from the mere issuance of
the CID. Such claims allege “present, concrete, and objective harms . . . resulting from
retaliatory government actions” in violation of the First Amendment, meaning that the case is
“not simply about a pre-enforcement challenge to a non-self-executing CID.” Media Matters for
Am. v. Paxton, 138 F.4th 563, 579 (D.C. Cir. 2025). Where the agency has inflicted “existing
and continuing First Amendment harms,” resulting claims are distinct from those addressing
harms from pre-enforcement challenges that “did not involve a First Amendment claim or any
already-accruing harm.” Media Matters, 2025 WL 2988966, at *3. The Circuit thus declined the
FTC’s stay request, holding that “when a [plaintiff] challenges a ‘sweeping’ demand on First
Amendment grounds and demonstrates actual and ongoing harm to its constitutional rights,” the
case does not fall into the standard pre-enforcement channeling regime. Id. (quoting Paxton, 138
F.4th at 569).
In renewing its arguments in this case, the Commission entreats that the Circuit’s
decision is not binding on this Court because it was not a judgment on the merits but only a
denial of a stay. See Gov. Opp. at 19. That case does, however, reflect the appellate court’s
reasoning on a dispositive legal question; indeed, if the Circuit had concluded that the district
court lacked jurisdiction over Media Matters’s claim, it would have presumably granted the
FTC’s stay request. Media Matters, 2025 WL 2988966, at *3 (“The likelihood of success carries
great weight in any stay analysis . . . .”).
As in Media Matters, precision in identifying the claim Plaintiff brings — which the
agency seeks to channel — is critical. Rather than presenting a classic challenge to the limits of
the Commission’s authority or the CID’s substantive requirements, Plaintiff raises constitutional
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concerns about the very act of issuing the CID and presents evidence “that it is suffering” in
wake of those constitutional violations. Cf. id. (holding that such claims can be challenged in
district court). The Society alleges that the FTC is retaliating against it for engaging in protected
speech about the medical treatment and care of transgender individuals in violation of the First
Amendment. See Compl., ¶¶ 33–37, 59–60, 70–77, 92–96. The method of retaliation is the
issuance of a highly intrusive and resource-intensive CID, whose existence is curtailing the
Society’s work by frightening its academic and professional partners. Id., ¶¶ 84–90.
As Media Matters did, the Society has demonstrated such ongoing harm. It has alleged,
and submitted declarations to show, that the CID prompted the Society’s academic partners to
withdraw from ongoing work and decline leadership positions within the Society. See Becker
Decl., ¶¶ 33–34. The very scientists and researchers who draft, edit, and review the Society’s
publications are, according to Plaintiff, unwilling to undertake that work for fear that their
“personal safety” and “future funding” would be at risk or they would face “government
retaliation.” Becker Decl., ¶ 24. As a consequence, the Society has limited or postponed
ongoing work. Id., ¶¶ 30, 36. Viewed in this light, the Court agrees with the D.C. Circuit that
“Thunder Basin is unlikely to foreclose [its] jurisdiction here.” Media Matters, 2025 WL
2988966, at *5.
Even to the extent that the Thunder Basin factors apply, the Society’s claim sails through
the “three considerations” relevant to assessing whether Congress has intended to remove district
courts’ jurisdiction over a particular claim. Axon, 598 U.S. at 186. Take the first: whether
consigning a claim to agency review would “foreclose all meaningful judicial review” of that
claim. Id. (quotation marks omitted). The FTC contends that the Society can challenge the CID
only once the Commission brings an action in federal district court to enforce its terms. But the
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Commission is in sole control of the decision to initiate an enforcement action. See 15 U.S.C.
§ 57b-1(e). Indeed, in Plaintiff’s telling, the FTC has no incentive to initiate an enforcement
action because it has achieved the very outcome it wanted — less objectionable speech by the
Society — simply by issuing the CID. The Court thus does not accept the Commission’s
argument that the Society faces no “penalty or other legal detriment” for failure to comply
“before a court orders enforcement.” Gov. Opp. at 5. The CID and the accompanying threat of
future enforcement sit as a Sword of Damocles suspended over Plaintiff’s head. To mix
weaponry metaphors, the Society alleges that the FTC is using its investigative demands as a
cudgel, “inflict[ing] concrete and ongoing injuries that suppress speech,” regardless of any later
enforcement action. Media Matters, 2025 WL 2988966, at *4 (quotation marks omitted).
As the Supreme Court recently pointed out, “where a plaintiff suffers ongoing injuries
from the [CID] itself,” it “does not follow” that “review upon enforcement” provides sufficient
remedy. First Choice Women’s Res. Ctrs., Inc. v. Davenport, 608 U.S. ___, 2026 WL 1153029,
at *10 (2026). The Court thinks it unlikely that Congress would grant an agency license to run
roughshod over a party’s First Amendment rights “while simultaneously closing the courthouse
doors to relief as long as the agency chooses not to take additional enforcement steps.” Media
Matters, 2025 WL 2988966, at *4.
The Society’s claim, moreover, is “wholly collateral” to the existence of the FTC’s
investigatory power or authority to issue a CID. Axon, 598 U.S. at 186 (quotation marks
omitted). The prototypical collateral claim challenges an agency’s very existence or its “power
to proceed at all.” Id. at 192; see also Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561
U.S. 477, 490 (2010) (challenge that agency structure violates Appointments Clause of
Constitution is collateral to “any Commission orders or rules”). So, too, here: the Society brings
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a retaliation claim that is antecedent to and independent of the CID’s content, legal authorization,
or scope. That claim turns on the Commission’s motive in taking any investigative action
against the Society — including issuing the CID — not on whether, say, it was procedurally
proper and sought discoverable material about topics within the FTC’s jurisdiction. The CID is
merely the tool giving effect to the FTC’s alleged retaliation against the Society. Plaintiff does
not seek a narrowing of the CID for want of relevance or lack of clarity of its terms. It
“protest[s] the ‘here-and-now’ injury of subjection to an unconstitutional[] process.” Axon, 598
U.S. at 192. This is precisely the sort of injury that the Supreme Court has held “can be
remedied by a court without regard to the eventual outcome of agency proceedings.” Id. at 210
(Gorsuch, J., concurring in the judgment) (quotation marks omitted).
Finally, the FTC has no “expertise” in adjudicating First Amendment retaliation claims
that parties bring against the Commission itself. Id. at 186 (majority opinion) (quotation marks
omitted). The Supreme Court has held that Congress can reserve initial review of even
constitutional claims to an agency that “routinely adjudicates” such claims when they are
intertwined with the agency’s area of expertise. Elgin v. Dep’t of the Treasury, 567 U.S. 1, 12
(2012). The Society’s retaliation claim, however, concerns the FTC’s purported abuse of its own
authority in order to suppress Plaintiff’s speech. Such self-policing is far outside the
Commission’s expert field of consumer protection and the regulation of anti-competitive
behavior. What is more, the Commission “was already afforded an opportunity” to pass on the
constitutional question when it considered the Society’s motion to quash the CID. Media
Matters, 2025 WL 2988966, at *5; see also FTC Denial (issued approximately one month after
Endocrine Society moved for injunctive relief). There is thus “no agency-expertise benefit to
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waiting” to proceed with judicial review until the agency itself decides when (if ever) it is ready.
Media Matters, 2025 WL 2988966, at *5.
Faced with a proposed statutory interpretation that would force Plaintiff to “suffer[]
present, concrete, and objective harms” from agency action while that same agency controls
access to judicial review, the Court can discern no congressional intent to leave parties stranded
in the manner the FTC suggests. Id. at *3 (quotation marks omitted). To hold that this Court’s
jurisdiction is displaced here would “present the serious constitutional question that would arise
if an agency statute were construed to preclude all judicial review of a constitutional claim.”
Elgin, 567 at 9 (quotation marks omitted). The Court thus holds that Plaintiff is likely to succeed
in demonstrating that this Court has jurisdiction over its claim.
2. 	Cause of Action
Another basis for rejecting Plaintiff’s Motion, the Government argues, is the Society’s
lack of a cause of action. A viable cause of action is indeed necessary for a plaintiff “to invoke
the power of the court to redress the violations of law that [it] claims the FTC has committed.”
Trudeau v. FTC, 456 F.3d 178, 188 (D.C. Cir. 2006). Although the Society brings “claims
aris[ing] under the First and Fourth Amendments,” the Government asserts that because the
Constitution provides no express cause of action, the Society may not sue to enjoin the FTC from
violating its constitutional rights. See Gov. Opp. at 20.
The incongruity of the Government’s position bears repeating. The FTC contends that —
notwithstanding Plaintiff’s allegation that the Government is unconstitutionally chilling its
expression in retaliation for prior protected speech — the Society has no right, and this Court has
no authority, to require it to stop. Id. But we “presume that justiciable constitutional rights are
to be enforced through the courts.” Davis v. Passman, 442 U.S. 228, 242 (1979); cf. Free Enter.
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Fund, 561 U.S. at 491 n.2 (alluding to “right to [injunctive] relief as a general matter” against
unconstitutional government action). The most obvious enforcement method is a court order
requiring the Government to cease its unconstitutional actions. Armstrong v. Exceptional Child
Ctr., Inc., 575 U.S. 320, 327 (2015) (“The ability to sue to enjoin unconstitutional actions by
state and federal officers . . . reflects a long history of judicial review of illegal executive
action.”). That same intuition underlies the D.C. Circuit’s holding that “[t]he court’s power to
enjoin unconstitutional acts by the government . . . is inherent in the Constitution itself.”
Hubbard v. U.S. Env’t Prot. Agency, Adm’r, 809 F.2d 1, 11 n.15 (D.C. Cir. 1986). The D.C.
Circuit has already reasoned, albeit in dicta, that a “direct cause of action under the First
Amendment” is available to plaintiffs alleging “unconstitutional retaliation.” Trudeau, 456 F.3d
at 190.
None of the cases the FTC cites undermines the conclusion that a plaintiff subject to
unconstitutional action by executive officers may sue to enjoin those actions. First, it invokes
the Supreme Court’s increasing hesitancy to recognized implied private actions for damages to
remedy alleged constitutional violations by federal officers. See, e.g., Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 70 (2001) (recognizing limited availability of damages remedy). Such
implied damages actions, called Bivens actions after their eponymous case, see 403 U.S. 388
(1971), are undeniably “disfavored” outside of the narrow contexts in which the Supreme Court
has already recognized monetary remedies. Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). No analogous caution, however, attends claims for
injunctive relief from constitutional violations. Nor should it: Bivens actions address
constitutional violations by individual federal officers and provide damages to deter those
officers where no “alternative methods of relief” are available. Id. at 145; see also id. at 140.
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Claims seeking injunctive relief, by contrast, fall within the heartland of traditional equitable
relief that the Constitution empowers plaintiffs to seek and courts to provide — a point
emphasized by many of the cases the FTC relies upon. Ziglar, 582 U.S. at 144 (detainees who
could not bring Bivens action for damages could “seek injunctive relief”); Malesko, 534 U.S. at
74 (“[I]njunctive relief has long been recognized as the proper means for preventing entities from
acting unconstitutionally.”); cf. DeVillier v. Texas, 601 U.S. 285, 292 (2024) (discussing
difference between causes of action for injunctive relief and damages, without deciding whether
constitutional provision created cause of action).
Next, the FTC appears to assert that Congress, via the FTC Act, foreclosed all avenues of
relief for CID recipients other than “an administrative process, followed by an enforcement
action.” Gov. Opp. at 20. Yet that Act does not establish anything close to the “detailed
remedial scheme” that courts require to find that Congress has cut off equitable relief for even
statutory rights — let alone ones guaranteed by the Constitution. Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 74 (1996). Other cases that the FTC cites concern Congress’s selection of
statutory remedies for statutory rights. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113,
122–23 (2005) (asking whether Congress withdrew statutorily enacted cause of action in § 1983
via later legislation); Alexander v. Sandoval, 532 U.S. 275, 289 (2001).
The Commission also contends that the Society’s First Amendment retaliation claim is
“not cognizable” because it is a retaliatory-investigation claim. See Gov. Opp. at 36. It cites
Hartman v. Moore, 547 U.S. 250 (2006), in support of its argument. See Gov. Opp. at 36. There
the Court mused that the “adverse consequences” (such as the “expense”) of a retaliatory
investigation might not ever “justify recognizing such an investigation as a distinct constitutional
violation.” Hartman, 547 U.S. at 262 n.9. That aside does not call into question the case’s
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broader affirmation that “the law is settled that . . . the First Amendment prohibits government
officials from subjecting an individual to retaliatory actions . . . for speaking out.” Id. at 256.
Where, as here, that “action” is a government investigation that inflicts a standalone injury by
chilling protected speech, it falls under the prohibited umbrella and is actionable. Cf. First
Choice, 2026 WL 1153029, at *8 (injury “arise[s] when a defendant burdens a plaintiff’s
constitutional rights”). The Society is thus likely to succeed on the cause-of-action requirement.
3. 	First Amendment Retaliation
With those preliminary questions resolved, the Court next assesses whether the Society is
likely to demonstrate that the FTC’s CID violates its constitutional rights. Plaintiff must thus
show that 1) it “engaged in conduct protected under the First Amendment”; 2) the Government’s
alleged retaliatory action was “sufficient to deter a person of ordinary firmness in plaintiff’s
position from speaking again”; and 3) there exists “a causal link between” the protected speech
and the retaliatory action. Aref v. Lynch, 833 F.3d 242, 258 (D.C. Cir. 2016).
a. 	Protected Speech
The FTC does not dispute that the Society satisfies the first element of a First
Amendment retaliation claim. It frequently engages in protected speech covered by the First
Amendment: it provides educational sessions for professionals working in endocrinology and
related fields, hosts conferences, and participates in legislative advocacy for certain health-policy
changes. See Becker Decl., ¶¶ 7–8. Relevant here, it publishes the medical Guidelines that were
the focus of the FTC’s July workshop and the at-issue CID. Id., ¶¶ 12–17. The FTC concedes
that Plaintiff “engages in some protected First Amendment conduct,” so the Society will
undoubtedly prevail on the first prong. See Gov. Opp. at 21.
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b. 	Chill
On the second prong, the Society must show that the Government’s conduct (here,
issuing a CID) “would likely deter a person of ordinary firmness from continuing to engage in
protected activity.” Hartley v. Wilfert, 918 F. Supp. 2d 45, 53 (D.D.C. 2013) (quotation marks
omitted). “[A] plaintiff’s actual response to a defendant’s conduct is not dispositive” of the
conduct’s deterrent effect, but it may “provide some evidence of the tendency of that conduct to
chill First Amendment activity.” Pinson v. U.S. Dep’t of Just., 246 F. Supp. 3d 211, 224 (D.D.C.
2017) (quotation marks and alterations omitted).
The Society contends that it is experiencing deleterious effects on its speech and work as
a result of ongoing government scrutiny, culminating in the issuance of the CID. The chilling
effects are found, for example, in the hesitancy of the Society’s staff or academic and
professional members to continue communicating, for fear of further government retaliation or
collateral consequences of being associated with an organization under investigation. One of the
Society’s senior staff members attests that “staff and members are communicating less, and less
freely, because of the CID.” Becker Decl., ¶ 28. Plaintiff has limited its publishing, posting, and
educational events concerning transgender health. Id., ¶ 29. It has also “significantly reduced
[its] communications with government officials and limited [its] efforts to influence government
policy” regarding transgender health. Id., ¶ 30. Most concretely, the Society has experienced a
withdrawal of member participation in its work because of fear of government scrutiny triggered
by the CID. Id., ¶ 33. These impacts have already delayed the Society’s planned update of its
Guidelines for gender-dysphoria treatment — the very Guidelines targeted by the CID. Id., ¶ 24.
Those limitations on the Society’s speech far exceed the relatively modest requirement that an
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action “deter a person of ordinary firmness” from speaking again. Hartley, 918 F. Supp. 2d at
53.
The FTC disclaims any chilling effect as the “routine and practical effects of an FTC
investigation” and a set of “speculative” assumptions about third parties’ behavior. See Gov.
Opp. at 35. It is true that in the regular course of an agency’s investigations, “the possibility of
incidental loss . . . is sometimes unavoidable,” even if the investigative target is later cleared of
any wrongdoing. Am. Sumatra Tobacco Corp. v. SEC, 110 F.2d 117, 121 (D.C. Cir. 1940).
Those losses can include a “substantial tarnishing of the name, reputation, and status” of an
entity “throughout the related business community as well as in the minds of some portion of the
general public.” FTC v. Cinderella Career & Finishing Schs., Inc., 404 F.2d 1308, 1313 (D.C.
Cir. 1968). Such harm, while “[u]nfortunate,” is a necessary cost of agency action that does not
on its own “constitute a transgression of [the investigated entity’s] legal rights.” Id. at 1316.
What the Society describes, however, is not merely the routine reputational damage that
might attend an ongoing investigation. Id. Rather than lost standing in its industry or across a
customer base, its Complaint and declarations attest that its very business — protected speech —
has already been stifled. Work on the Guidelines that the Society has undertaken since 2009 has
been delayed. See Becker Decl., ¶ 24. The engine driving the Society’s work — internal and
external communications — operates more slowly or not at all due to the CID. Id., ¶¶ 28–34.
These harms are in line with the limits on communication and professional activities that the
D.C. Circuit has held satisfy the “ordinary firmness” test. Paxton, 138 F.4th at 581.
Nor does the Court credit the Commission’s implication that the Society and its members
are assuming a risk of future harm that does not exist. Plaintiff’s declarant identifies the main
motivations for members’ ceasing their collaboration with the organization’s work: fear of
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heightened scrutiny by the Government, fear for personal safety following public backlash from
the Government’s targeting of the Society, risk to employment and funding opportunities, and
fear for immigration status. See Becker Decl., ¶ 32. All are realistic collateral consequences of
the CID that “[o]bjectively reasonable people” would not “lightly disregard.” First Choice, 2026
WL 1153029, at *9. The Society is thus likely to prevail on the second element of its claim.
c. 	Causal Link
Plaintiff’s most difficult task is demonstrating the causal link between its disfavored
speech and the Commission’s decision to issue a CID. To succeed here, the Society must show
that “the adverse action against [it] would not have been taken absent the retaliatory motive.”
Nieves v. Bartlett, 587 U.S. 391, 399 (2019). The “retaliatory motive” must be “a but-for cause”
of the injury. Id. at 398–99. “Circumstantial evidence is equally as probative as direct evidence
in proving illegitimate intent,” in part because the latter “is usually difficult, if not impossible, to
obtain.” Media Matters, 2025 WL 2988966, at *8 (quotation marks and citation omitted).
The parties lightly dispute the causation standard that the Society must meet. The FTC
briefly argues that the Society “must demonstrate that there was no reasonable basis for the
CID.” Gov. Opp. at 22 n.1. Its conclusion rests on the Supreme Court’s holdings that plaintiffs
bringing retaliatory-prosecution or retaliatory-arrest claims under the First Amendment must
demonstrate that no probable cause existed for the underlying prosecutorial action. E.g.,
Hartman, 547 U.S. at 265–66 (“absence of probable cause . . . must be pleaded and proven” in
retaliatory-prosecution claim); Nieves, 587 U.S. at 404 (applying rule to retaliatory-arrest
claims). That rule captures two features of retaliatory actions that manifest in criminal
prosecution cases: 1) the “distinct body of highly valuable circumstantial evidence available” to
show probable cause that can shed light on retaliatory causation; and 2) the “complex
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connection” between the defendant’s retaliatory animus (which is mediated by an absolutely
immune prosecutor) and the plaintiff’s injury, requiring a more robust causal link. Hartman, 547
U.S. at 260–62. Neither feature is present here. The statutory standard that the FTC need only
have “reason to believe” an entity has relevant information, see 15 U.S.C. § 57b-1(c)(1), offers
no font of relevant evidence. Cf. Hartman, 547 U.S. at 265 (proving absence of probable cause
“will usually be cost free”). Nor does this case present an attenuated connection between a
plaintiff and a non-prosecuting retaliatory defendant: the FTC itself is both the prosecutor and
the purported retaliator. The Court must thus ensure that the Society is not “punished for
exercising a protected statutory or constitutional right,” a requirement captured by but-for
causation. United States v. Goodwin, 457 U.S. 368, 372 (1982); see also United States v. Meyer,
810 F.2d 1242, 1245 (D.C. Cir. 1987) (impermissible for “prosecutor [to] act[] in order to punish
[party] for standing on his legal rights”).
The Society contends that it is likely to succeed in showing that retaliatory animus caused
the FTC to issue its CID. The breadth and vigor of Government action levied against proponents
of the view that there can be an incongruence between an individual’s sex and gender identity
provides relevant circumstantial evidence here. The “expression of hostility to the protected
speech” can “support a finding that protected speech caused the agency’s response.” Media
Matters, 2025 WL 2988966, at *8. The Trump Administration has labeled the idea that
individuals can be transgender as “gender ideology,” Gender Ideology Exec. Order at 8615, and
warned the public to be vigilant against the “anti-American, subversive, harmful, and false”
concept of gender incongruence. See Schooling Exec. Order at 8853. It has called on agencies
to reflect its preferred viewpoint in their regulations, statements, and funding decisions. See
generally Gender Ideology Exec. Order at 8616–17. To that end, HHS released a report
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criticizing the Society and requesting that it alter its guidance to remove support for pediatric-
gender-affirming care. See HHS Report at 146–47; HHS Letter at ECF p. 3.
The Attorney General soon followed suit and kicked off a legion of investigations into
proponents of transgender medical care. Preventing the Mutilation of American Children at 3–4,
https://perma.cc/54NN-ARKU. Courts across the country have quashed civil subpoenas issued
in furtherance of these investigations as a “pretextual” cover for the purpose of “downsiz[ing] or
eliminat[ing] all gender-affirming care.” QueerDoc, 807 F. Supp. 3d at 1303 (quotation marks
omitted). “No reported federal decision has ruled in the government’s favor” regarding
subpoenas “sent to providers of gender-related care.” In re Administrative Subpoena No. 25-
1431-030, 2026 WL 33398, at *3 (quotation marks and alterations omitted); but see In Re:
Administrative Subpoena 25-1431-032, No. 26-mc-6, ECF No. 2 (Order) (N.D. Tex. Apr. 30,
2026) (ordering hospital to comply with subpoena).
What is more, the highest echelons of the FTC have affirmed the Administration’s view.
Chair Ferguson used his eagerness to “[f]ight back against the trans agenda” as a talking point
for his nomination. See Ferguson Statement at 1. Adopting the Administration’s semantic
disdain for advocates for transgender health, the Chair then banned FTC employees from
American Bar Association events in part because of the ABA’s “leftist amicus advocacy” on
“transgender ideology.” ECF No. 9-19 (Ferguson Letter) at 2. It is true that Ferguson’s direct
comments at the FTC’s gender-affirming-care workshop largely concerned substantiation of
scientific claims about gender-affirming care for minors, rather than pure animus toward its
existence. See generally FTC Workshop Tr. at 2–6 (describing FTC’s goal “to ensure that those
who make claims about gender-affirming care are held to the same standard we apply to
everyone else who engages in commerce”). But many participants also voiced heated rejections
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of the basic notion of gender-affirming care or the idea that individuals can be transgender. See,
e.g., id. at 38 (gender dysphoria is “science fiction” and “the foundational fraud”); id. at 61
(participant working toward “affirming biological truth”). They also targeted the Endocrine
Society and other medical associations, accusing them of lying and making “false”
representations. Id. at 41.
The Government’s “expression of hostility” regarding “the protected speech . . . can
support a finding that protected speech caused the agency’s response.” Am. Acad. of Pediatrics
v. U.S. Dep’t of Health & Hum. Servs., 816 F. Supp. 3d 27, 54 (D.D.C. 2026). Here, the
evidence is more attenuated because the FTC hosted the forum for such disapproval rather than
explicitly endorsing it. The Society, however, was a target of this workshop in part because it
espouses a position contrary to the Administration’s stated “policy” that there are only “two
sexes” that are “not changeable.” Gender Ideology Exec. Order at 8615. A CID targeting the
Society’s work on transgender-health issues thus reasonably appears to be one more step in a
multiagency campaign to stamp out dissenters.
While this demonstrates that the Society has brought forth robust circumstantial evidence
that retaliation motivated the FTC’s actions, that is not enough to prevail under a but-for-cause
standard. The FTC could show that a legitimate purpose nevertheless prompted it to issue the
CID. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). Indeed, the
Commission protests that it issued the CID in service of a legitimate investigation and that such
basis, not retaliatory intent, motivated its action. It claims to be investigating “a high-priority
issue squarely within the FTC’s bailiwick: false or unsubstantiated medical claims about the
safety and effectiveness of certain treatments for pediatric gender dysphoria.” Gov. Opp. at 22;
see also CID at ECF p. 6. The Society, it theorizes, may hold information regarding what
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“entities” may be spreading false information on gender-dysphoria treatment for minors by dint
of its position as an “influential source[] of clinical guidance.” Gov. Opp. at 23 (quotation marks
omitted). The FTC also characterizes its workshop, statements by FTC officials, and other
actions by the Administration as well within the ambit of an executive branch seeking to enforce
the law. See generally id. at 24–29. Those statements represent Commission officials’ views on
potential legal violations, it says, and are akin to permissible statements that reflect an official’s
“own views about [substantive] law” without evincing “personal animosity.” Id. at 27 (quoting
FTC v. Facebook, Inc., 581 F. Supp. 3d 34, 64 (D.D.C. 2022)).
The Court has some sympathy for the FTC’s argument. The entire point of Congress’s
grant of investigative authority to the agency is to give it the necessary tools to obtain records
and testimony to uncover violations. FTC v. Ken Roberts Co., 276 F.3d 583, 587 (D.C. Cir.
2001). The low statutory threshold that requires the Commission to have “reason to believe” an
entity possesses such information reflects its broad power. See 15 U.S.C. § 57b-1(c)(1); Ken
Roberts Co., 276 F.3d at 587 (“On its own terms, the FTC Act gives the FTC ample authority to
investigate . . . .”).
At the same time, it is “clearly true” that an agency undertaking a civil investigation may
not “conduct an unlimited fishing expedition.” United States v. Time Warner, Inc., 1997 WL
118413, at *4 (D.D.C. Jan. 22, 1997). Nor may agencies use their investigative tools to suppress
speech with which they disagree. Hartman, 547 U.S. at 256. The Court takes the Commission’s
explanation at face value, in keeping with the “longstanding presumption of regularity accorded
to prosecutorial decisionmaking.” Id. at 263. But even in the Commission’s own telling, the
Court strains to discern a plausible connection between the CID and the suspected violations that
concern the FTC. The Commission is “charged with protecting consumers from false or
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misleading advertising of products being sold, not from being exposed to novel or unproven
medical ideas contained in health-related publications.” FTC v. Agora Fin., LLC, 447 F. Supp.
3d 350, 366 (D. Md. 2020). The Society’s clinical guidance, education, and policy advocacy
clearly fall on the “ideas” rather than “products” side of the line. It is thus unclear who the
Commission hypothesizes is violating the FTC Act. Medical providers? Pharmaceutical
companies? If so, why are the Society and other nonprofit organizations that sell no products
and engage in no advertising the current investigative targets? If the Society is not the one
supposedly making commercial representations, why does the FTC seek records of, for example,
“[a]ll materials used in any education, training, or certification program” the Society offers? See
CID at ECF p. 8.
The FTC offers no answers to these questions. It asserts that the Society itself could be
engaging in commercial activity, despite its nonprofit status, and, in any event, it may have
“information about whether other entities have disseminated false or unsubstantiated claims.”
Gov. Opp. at 23. Fair enough — in theory. But the sum total of the FTC’s reasoning for the
Society’s own commercial involvement is the unsupported assertion that some of its members
“may have a financial interest” in pediatric-gender-dysphoria treatment. Id. When nonprofit
entities exhibit signs of capture by a particular industry or are rife with conflicts of interest that
steer them from a noncommercial posture, the FTC can exercise enforcement authority over
them. See, e.g., Cal. Dental Ass’n v. FTC, 526 U.S. 756, 767 (1999) (appropriate where
professional association “provides advantageous insurance and preferential financing
arrangements for its members” and “confer[s]” economic benefits that “enhanc[e] its members’
profit”) (quotation marks omitted). The Commission offers no evidence, however, that any such
conflict is at play here and has declined to give the Court any theory upon which it expects to
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uncover concrete evidence of a third-party violator. See ECF No. 33 (Hearing Tr.) at 21:2–8
(leaning on “treatments being harmful” and “potential deception and potential misleading
statements” with no accompanying evidence of commercial activity). That leaves the evidence
of a non-retaliatory motive sorely wanting.
The scope of the CID further undercuts the FTC’s argument that it seeks evidence of
potentially misleading commercial speech. The CID seeks all communications surrounding the
Society’s work on the 2017 Guidelines and 2020 Position Statement, including “all
[c]ommunications with Professional Medical Organizations,” “[a]ll testimony, advocacy, or
other information provided to any legislature or regulator related to” gender-affirming care for
minors, and all documents the Society has ever “disseminated” stating that such care is “safe” or
“effective.” CID at ECF pp. 8–9. It seeks the names and qualifications of anyone who
developed claims of gender-affirming care’s safety and effectiveness for minors, which could
cover thousands of the Society’s members and all of its staff. Id. at ECF p. 7. Put simply, the
CID seeks substantive content that itself would be protected by the First Amendment and the
identity of the individuals who created the content. That raises concerns that its true aim is to
suppress the Society’s speech regarding gender-affirming care. Cf. Media Matters, 2025 WL
2988966, at *7 (“effort to probe into editorial decisionmaking” and publication communications
can point to “pretext”). The Court at the hearing in fact inquired about its ability to strike some
of the more concerning provisions rather than enjoining the entire CID. The Commission,
however, declined to engage with that possibility, telling the Court that essentially it was all or
nothing. See Hearing Tr. at 30:08–32:02.
Nor does the FTC’s secondary justification — i.e., that the Society may have information
relevant to the substantiation element of an unfair-marketing claim — overcome the retaliatory
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evidence. True, “determining whether [an] advertiser’s claim is false, misleading, or
unsubstantiated” is a crucial step in demonstrating a violation. POM Wonderful, LLC v. FTC,
777 F.3d 478, 490–91 (D.C. Cir. 2015) (describing substantiation requirements for different
claims). It is not clear, however, why a CID is needed for that function, given that the Society
shows its work. The Guidelines at the center of the CID come with a complete bibliography of
studies the authors relied upon. See Guidelines at 3896–3903. The authors’ names and
institutional affiliations are public. Id. at 3869. Federal agencies — or anyone else — should
feel free to criticize the quality of those studies or deploy their own in rebuttal. See, e.g., HHS
Report at 146–50 (doing precisely that). Yet the FTC has offered no reason to believe that the
studies themselves are fabricated or that the Society’s internal records would reveal otherwise
untoward influence. Seeking reams of academic evidence solely on the basis of exploring
whether certain health claims are substantiated cannot sustain a CID that seeks extensive internal
and external communications spanning research, educational, and advocacy fora. Cf. POM
Wonderful, 777 F.3d at 493–94 (evaluating substantiation by publicly available studies in order
to regulate advertisers). To so hold would blow open the careful distinction between commercial
speech — the subject of FTC regulation — and academic or medical speech — historically, the
province of state regulation. See generally ECF No. 23 (States’ Amicus Br.) at 2 (derailing
Society’s ability to issue Guidelines risks “usurping states’ traditional and longstanding authority
to oversee the regulation of the practice of medicine”).
This Court follows the D.C. Circuit’s lead in Media Matters, which involved another
allegedly retaliatory CID, albeit in a different procedural posture. See 2025 WL 2988966, at *6–
8. The Circuit there credited a “pattern of litigation and information demands” targeted at a
disfavored speaker over the course of some months. Id. at *6. It also considered the CID’s
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“broad scope” to be “relevant evidence” that the Commission’s purpose was pretextual. Id. at
*7. The Court finds the same systemic targeting of proponents of medical treatment for gender
incongruence at work here. The Society is the latest casualty in some Executive Branch
agencies’ bid to investigate hospitals, medical providers, and charitable organizations that
support transgender health. The CID’s focus on academic and medical speech, combined with
the FTC’s paucity of logic or evidence pointing to a genuine investigation, confirms the
conclusion that the CID was likely issued for a retaliatory purpose. While the Society still faces
the heavy burden of making that showing on the merits, Media Matters, 2025 WL 2988966, at
*9, on this preliminary record it is likely to succeed in its First Amendment retaliation claim
against the FTC.
B. 	Irreparable Harm
With one substantial tick in the Society’s column, the Court need not belabor the other
preliminary-injunction factors. “The loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury.” Mahmoud v. Taylor, 606 U.S.
522, 569 (2025) (quotation marks and alterations omitted). When a party makes it “apparent”
that its “constitutional rights are violated,” it easily clears the irreparable-harm requirement to
warrant preliminary relief. Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009).
The Society has shown that the Government’s CID “ha[s] already violated and continue[s] to
violate” its First Amendment rights by prompting “self-censorship and the chilling of First
Amendment expression.” Turner v. U.S. Agency for Glob. Media, 502 F. Supp. 3d 333, 385
(D.D.C. 2020) (finding irreparable injury satisfied).
The FTC protests that the supposed irreparable harms are merely “purported reputational
injuries” or hypothetical effects that “stem[] from Endocrine Society’s own choices or
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speculation about the actions of third parties” that are not caused by the CID and can be
remedied by money damages. See Gov. Opp. at 43–44. The record reveals a different story.
The Society’s affiants attest that “[s]everal individuals who previously have worked” on the
development of its Guidelines have withdrawn from the process, citing fear of “scrutiny from the
administration.” Becker Decl., ¶ 32. Work on the Guidelines has stalled and the next update has
been delayed. Id., ¶ 24. Other members relayed threats of job loss and anxiety about job
security that prevented their continued work with the Society after receiving the litigation hold
imposed by the CID. Id., ¶ 33. Because the CID encompasses internal staff communications,
the Society reasonably expects that its “staff and members will avoid communicating with each
other on current Endocrine Society projects,” and volunteers will decline to work on Society
operations or join the group for fear that their statements will be relayed to the FTC. Id., ¶ 34.
These are not amorphous future harms. The Society is losing membership, work capacity, and
the ability for its staff to maintain free, frank conversations because of the pall the CID cast over
it. Removing the CID would alleviate that pall. Keeping it in place would inflict further injury
to the Society’s speech that “cannot be fully compensated by later damages.” Susman Godfrey
LLP v. Exec. Off. of President, 789 F. Supp. 3d 15, 56 (D.D.C. 2025) (quotation marks omitted).
C. 	Balance of Equities
“It is well settled that the balance of equities and public interest factors merge if the
government is the opposing party.” Paxton, 138 F.4th at 585 (citing Karem v. Trump, 960 F.3d
656, 668 (D.C. Cir. 2020)). There is no contest. The Society’s interest in obtaining an
injunction mirrors that of every person subject to government power: vindicating the right to be
free of retaliation for its protected speech. As for the public interest, “there is always a strong
public interest in the exercise of free speech rights otherwise abridged by an unconstitutional
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government action.” Id. (quotation marks omitted). The Government indeed has an undeniable
interest in enforcing the law, id., but this decision does not interfere with its power to investigate
other entities that could be employing unfair marketing practices in the way that it fears. If some
striking new evidence comes to light, moreover, that makes the connection between the Society’s
academic work and genuine violations within the FTC’s purview less hypothetical and
attenuated, the Commission may return and seek a lifting of this Court’s preliminary injunction.
The Court will also limit its injunction to implementation and enforcement of the CID, as further
relief from other investigative steps is not appropriate at this early stage. See Pl. Mot. at 43
(seeking broader relief) The harm to the FTC from a stay of a discrete piece of its investigation
— the CID against the Endocrine Society — pales in comparison to the benefit the Society will
receive once the chilling weight of the CID is lifted. The final factors thus swing strongly
toward preliminary relief.
D. 	Final Issues
The FTC seeks a bond in the event that Plaintiff prevails here. See Gov. Opp. at 44.
Federal Rule of Civil Procedure 65(c) requires that a movant for a preliminary injunction “give[]
security in an amount that the court considers proper to pay the costs and damages sustained by
any party found to have been wrongfully enjoined or restrained.” In line with this Court’s
“broad discretion . . . to determine the appropriate amount of an injunction bond” and the lack of
“material monetary injury” shown by the FTC, the Court will require that Plaintiff post a $1.00
bond. Cf. J.G.G. v. Trump, 786 F. Supp. 3d 37, 82 (D.D.C. 2025). Because the Endocrine
Society will bear the lion’s share of any costs resulting from the ultimate enforcement of the
CID, the Court finds this nominal amount appropriate here.
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Finally, the Court will deny the Government’s request to stay its preliminary injunction
pending appeal. See Gov. Opp. at 44. The parties jointly agreed to stay the CID’s operation
until after this Court’s decision on Plaintiff’s Motion. See ECF No. 12 (Stipulation), ¶ 3. The
Court’s decision here therefore requires no immediate action from either party: as it does not
alter the status quo, no stay pending appeal is warranted.
IV. 	Conclusion
The Society has prevailed in showing that the factors governing preliminary relief all
point in its favor. The Court will thus grant its Motion for the most part and preliminarily enjoin
enforcement of the CID. It will deny the Society’s Motion to the extent it seeks further relief. A
separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
Chief Judge
Date: May 7, 2026
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