Trump Admin Lawyer Concedes Removal of HMS Professors’ Research from Federal Website Violated First Amendment

BOSTON — A government lawyer conceded that the removal of two Harvard Medical School professors’ research from a federal website constituted “viewpoint discrimination” — a violation of the First Amendment — at a Wednesday hearing in Boston.

HMS professors Celeste S. Royce and Gordon D. Schiff sued the Trump administration in March for taking down their articles from the Patient Safety Network — a federal website that features recent patient safety research — for including recently forbidden terms, such as “LGBTQ” and “transgender.”

The lawsuit argued that the government violated the defendants’ First Amendment rights and the Administrative Procedure Act, which governs the actions of federal agencies. Federal District Court Judge Leo T. Sorokin seemed skeptical of the defense’s arguments, repeatedly questioning assistant U.S. attorney Shawna H. Yen ’89 and posing hypotheticals that challenged her arguments.

At one point, Yen conceded that the removal of the two articles on the basis of their content amounted to viewpoint discrimination. Sorokin repeatedly pressed Yen, a former Crimson News editor, on how the removals could be constitutional given her admission.

“It’s really clear that the court was quite troubled by what the government admits is viewpoint discrimination, and that was a huge admission that the government made,” Rachel Davidson, an attorney from the American Civil Liberties Union of Massachusetts who is representing the plaintiffs, said in an interview after the hearing.

The Agency for Healthcare Research and Quality took down the research in compliance with guidance issued on Jan. 29 by the Office of Personnel Management, which instructed agencies to remove “all outward facing media” that “inculcate or promote gender ideology.” The OPM made the directive to comply with a Jan. 20 executive order by President Donald Trump.

During the hearing, the plaintiffs’ attorneys contested both the OPM’s directive and its implementation by AHRQ. Scarlet Kim, another ACLU attorney, argued that both actions were “arbitrary and capricious” — which is unlawful under the APA — because the agencies gave no rationale for their actions beyond the executive order itself.

Kim also argued that the OPM directive exceeded the statutory authority of the agency, claiming that the takedown directive was not related to federal personnel — the main oversight responsibility of OPM — and that one agency does not have the authority to instruct others how to act.

Yen, the government lawyer, argued that the removals were legal because the federal agencies were following Trump’s executive order, which defined sex as binary and instructed agencies to remove any messages that promote or include “gender ideology.”

Sorokin did not issue a final ruling on the hearing, but he did not seem convinced by Yen’s line of reasoning. At one point, he asked if she was familiar with Daniel Patrick Moynihan’s quote that “everyone is entitled to his own opinion, but not to his own facts.”

The plaintiffs’ attorney requested that the government restore the professors’ two articles, as well as any others that had been removed from the PSNet website due to the OMB directive. They also asked the judge to bar future implementation of the OPM’s directive.

But Yen said that AHRQ might have technical difficulties in restoring the articles to PSNet. The official charged with overseeing technology at AHRQ told Yen that he could try to manually restore one or two articles, but he will be laid off by the end of June, she said. Yen added that the government is no longer publishing articles on the website and there are no existing plans to reactivate it.

Royce and Schiff’s lawsuit, which was filed more than a month before Harvard began its own legal battle with the Trump administration, is one of several complaints that Harvard faculty have launched against the government. Harvard’s chapter of the American Association of University Professors filed two lawsuits, one over the Trump administration’s targeting of international students and faculty and another over research cuts. And a Harvard School of Public Health professor joined a suit over the Trump administration’s freezes on equity-related grants.

Neither Royce’s nor Schiff’s articles were primarily focused on LGBTQ health care, but both acknowledged how gay or transgender people could be affected by certain medical conditions.

Royce’s article covered endometriosis, a condition in which tissue similar to the uterine lining grows outside the uterus, and briefly discussed how the disease “can occur in trans and non-gender-conforming people.” And Schiff’s paper on suicide risk assessment noted several “high risk groups,” which included LGBTQ individuals.

Royce and Schiff both said they were heartened by the judge’s response to the arguments made during the hearing.

“Just to watch the gears of government working the way that they were supposed to — I just found that incredibly rewarding,” Royce said.

—Staff writer William C. Mao can be reached at william.mao@thecrimson.com. Follow him on X @williamcmao.

—Staff writer Veronica H. Paulus can be reached at veronica.paulus@thecrimson.com. Follow her on X @VeronicaHPaulus.