Protecting Trans Rights: An Opportunity in Local Governance

Trans rights—civil rights—are undergoing a discriminative federal attack. The Trump Administration has flooded the United States’ legal system with increasingly transphobic, generally oppressive, and ostensibly legal Executive Orders, many “calling for widespread discrimination against transgender people in their public and private lives.” [1] Under legal ambiguity created by Erie v. Tompkins and limitations on the federal control over municipal resources in Printz v. United States, local governments can begin to utilize legal autonomy to resist the Trump Administration's discriminatory Executive Orders. Municipal resistance of Executive Orders at this scale remains mostly untested in courts, but with such immediate and drastic threats to civil rights, legal experimentation and ambition is necessary. 

Local governments exist as extensions of state-level politics but, in some domains, exist even independently from their respective states under some legal interpretations. There is exhaustive legal debate surrounding the interaction of two conflicting Supreme Court cases regarding local government autonomy: Hunter v. Pittsburgh and Erie v. Tompkins. [2]

Hunter v. Pittsburg dealt with urban annexation allowed under state law and resulted in the interpretative ruling that folded local governments into extensions of state political actors. [3] The court ruled on the ability of municipalities to resist top-down merging of cities, ultimately finding that the State of Pennsylvania could sanction the City of Pittsburgh to absorb the City of Allegheny, despite Allegheny residents’ disapproval of the annexation. [4] This ruling weakened local governments, placing them as bendable, carcass-like animations of states.

However limiting Hunter may be, Erie v. Tompkins broadened the power horizons of local governments. Erie narrows application of “federal general common law,” opening a possibility for municipal law to exist independently of overarching statutes, thus dismantling Hunter’s reasoning: “Hunter’s free-standing rule that local public entities are powerlessness vis-à-vis their state governments is not anchored by any constitutional provision or federal statute. That rule therefore appears to be precisely the sort of ‘federal general common law’ rule that Erie abolished.” [5]

The Supreme Court, however, has never formally found Hunter to be overturned. [6] This leaves Erie’s impact on local power legally ambiguous. Erie, no doubt, challenges and potentially overturns Hunter’s implications, likely bolstering municipal power: “there are good reasons to support local constitutional enforcement, including that such cases [Erie] have the potential to promote local power; enhance the democratic legitimacy of constitutional litigation; and shore up local constitutional competency.” [7]

The many scholars who account for the mounting legal analysis and evidence argue that Erie’s limitations on total state authority overturns Hunter’s weakening of local governments. [8] The Supreme Court retains a notable ambivalence about Hunter’s standing: “The Court has repeatedly departed sub silentio from Hunter’s rule of local powerlessness by recognizing and treating localities as legally—and sometimes even constitutionally—independent of their states.” [9] By navigating this ambivalence while recognizing the potential autonomy of local governments, municipalities may be able to claim independent, conflicting resources and statutes from their state and federal government counterparts.

Even with this theorized independence, the interaction between Hunter and Erie provides no concrete path for local governments to resist federal law and open gateways for trans rights protection, but they do advance a critical step toward such goals: there is an ambiguous, nebulous quality to local autonomy which could be exercised in precedent-making and ambitious ways to protect civil rights. The Supreme Court’s persistent sub silentio—avoidance of explicit ruling—on local autonomy leaves wiggle room for local legal ambition to safeguard trans rights under fire. 

Bounding off of this ambiguity, Printz v. United States provides an additional critical piece of evidence that local governments possess the legal capability to defend against discriminating Executive Orders. Printz v. United States found that the Brady Handgun Violence Prevention Act, a law requiring local officials to perform background checks on certain firearm purchases, violated the extent of the 10th Amendment and Necessary and Proper Clause: “Justice Scalia…reasoned that because Congress is not empowered to violate the sovereignty of states, congressional legislative acts that violate the Tenth Amendment, as did the Brady Act, cannot be necessary and proper.” [10] Specifically, the Supreme Court found that the federal government overreached in attempting to “comand” state resources. [11] Importantly, the decision found law that “enlists the service of local chief law enforcement officers” as an overreach of federal authority, breaching guaranteed state sovereignty under the Tenth Amendment. [12]

Marshaling the ambiguity of the legal line between state and local resources created by Hunter and Erie, the ruling in Printz regarding ‘state resources’ may just as well extend to federal overreach controlling municipal resources, too. Through the lens of this interpretation, Printz allows local governments to resist the Brady Act on the grounds that it would require local officers to perform background checks. Because local officers are actors and assets of the municipal government, they are not subject to federal oversight under reserved state sovereignty. 

Under the Trump Administration, there has been a seemingly endless flood of Executive Orders from threatening the well-being and legal recognition of trans people, and some fall more within the purview of municipal authority than others. In an attempt to invoke Title IX protections, Executive Order 14201, called “Keeping Men Out of Women’s Sports,” aims at barring trans people from competing in sports across “educational institutions and athletic associations.” [13] The Executive Order threatens funding to non-complying federally-subsidized institutions, as well as lays the groundwork to “convene representatives of major athletic organizations…[and] State Attorneys General to identify best practices” among a myriad of other attempts at enforcement methods. [14] Despite attempting to position itself in the scope of federal focus, Executive Order 14201 may be able to be resisted by local governments.

Importantly, many educational institutions that receive federal funding use municipality-owned sports complexes. For example, the City of Pasadena owns the Rose Bowl, but the Rose Bowl “has been the home of UCLA football since 1982.” [15; 16] With Trump threatening funding to educational institutions and the existence of intersections between sports complexes and municipalities, many local governments are being asked to discriminate against trans people using their facilities. Using Printz’s prioritization of the sovereignty of state resources over federal control and Hunter and Erie’s legally ambiguous line between state and local resources, this Executive Order could arguably be seen as attempting to control municipal resources, potentially breaching the Tenth Amendment. [17; 18]

Recognizing this potential overreach, local-level legal actors have a unique opportunity to resist discriminatory Executive Orders by recognizing their ownership of targeted facilities. Executive Order 14201 can be challenged on the grounds that attempting to control educational sports complexes through funding cuts is commanding previously awarded autonomy possessed by local governments to control their own resources—in this case, sporting facilities.

Some may argue that the threat of federal financial cuts does not constitute attempted federal control, thus falling outside the legal reasoning of Printz. However, a closer examination of the Printz ruling reveals that Executive Order 14201 bears similarities to the problematic overreach of the Brady Act: “The petitioners…from counties in Montana and Arizona, objected…provisions that required them either to destroy records in their possession relating to a handgun transfer that was deemed legal or to inform prospective purchasers upon request and in writing why the transfer was denied…They argued that the Brady Act unconstitutionally pressed them, as state officers, into federal service by compelling them to execute a federal program.” [19] The unconstitutionality of the Brady Act was derived from “press[ing]...state officer…by compelling” them into federal service. [20] This unconstitutional act of compulsion can just as easily occur through financial threat. Executive Order 14201 attempts to compel educational institutions to discriminate against trans people, effectively compelling and pressing locally-owned facilities to comply. [21] Municipalities simply allowing educational institutions to use their assets in discriminatory ways is local compliance to federal regulation, defying Printz’s demarcation of federal power in influencing state and local resources. 

Executive Order 14201 also signals an attempt to coordinate with “State Attorney Generals” to pursue intrastate anti-trans legislation or other executive moves. [22] Local governments, using Erie’s ambiguity with municipalities acting independent of their state, can similarly resist state encroachment on municipality-owned facilities. Whether states exercise monetary threats, direct regulation, or any other anti-trans enforcement methods of educational institutions, local governments that collaborate with local universities have ground for resistance. 

Using this reasoning of municipal overlap with federal action like in Executive Order 14201, local legal actors could potentially find even more Executive Orders to combat. Like contending with federal encroachment, state legal resistance delves into unprecedented and sub silentio areas of municipal autonomy. Such fringe theory does require legal ambition, and, of course, not all sports complexes used by universities are owned by local governments. However, the very existence of legal wiggle room ought to be enough grounds for some amount of municipal resistance and exploration. When it comes to an issue of civil rights, any afforded pushback should be pursued. 

Edited by Joaquin Recinos

[1] Alexa Wilkinson “Your Rights in New York After Trump’s Anti-Trans Executive Orders”, NYCLU (2025), online at https://www.nyclu.org/resources/know-your-rights/your-rights-in-new-york-after-trumps-anti-trans-executive-orders.

[2] Kathleen Morris, “The Case for Local Constitutional Enforcement,” Harvard Civil Rights–Civil Liberties Law Review 47, (2012): 5.

[3] Morris, “The Case for Local,” 3.

[4] Morris, “The Case for Local,” 6.

[5] Morris, “The Case for Local,” 6.

[6] Morris, “The Case for Local,” 3.

[7] Morris, “The Case for Local,” 5.

[8] Morris, “The Case for Local,” 5.

[9] Morris, “The Case for Local,” 3.

[10] Kevin Butler, “Printz v. United States: Tenth Amendment Limitations on Federal Access to the Mechanisms of State Government,” Mercer Law Review 49, (1998): 604.

[11] Printz v. United States, 521 U.S. 898, 935 (1997).

[12] Butler, “Printz v. United States,” 596. 

[13] Exec. Order No. 14201, 90 Fed. Reg. 9279 (Feb. 11, 2025).

[14] Exec. Order No. 14201, 90 Fed. Reg. 9279 (Feb. 11, 2025).

[15] City of Pasadena, “City of Pasadena and Rose Bowl Stadium Announce Los Angeles (LA28) Olympic Games Agreement”, City of Pasadena, online at https://www.cityofpasadena.net/city-manager/news/city-of-pasadena-and-rose-bowl-stadium-announce-los-angeles-la28-olympic-games-agreement/. 

[16] UCLA Athletics, “The Rose Bowl,” UCLA Bruins, online at https://uclabruins.com/facilities/the-rose-bowl/1. 

[17] Butler, “Printz v. United States,” 596.

[18] Morris, “The Case for Local,” 3.

[19] Butler, “Printz v. United States,” 596. 

[20] Butler, “Printz v. United States,” 596. 

[21] Butler, “Printz v. United States,” 596. 

[22] Exec. Order No. 14201, 90 Fed. Reg. 9279 (Feb. 11, 2025).