In several cases across the country, judges have rejected or trimmed subpoenas from the Justice Department probing whether gender-affirming care provided to minors violates federal law.
The subpoenas seek extremely sensitive information. The DOJ is asking for names, dates of birth, addresses and social security numbers of child patients who have been prescribed puberty blockers and hormone therapy, as well as their families’ identifying information.
But in four cases that have reached the decision stage, challengers have won at least partial victories — federal district court judges have either quashed the subpoenas altogether or limited the patient information that must be provided. The DOJ has appealed each decision. In an additional case in Colorado, a magistrate judge has recommended to the district court that a subpoena be quashed. These judicial rulings, however limited, mark a victory for those who are seeking to push back on the campaign to treat certain forms of transgender health care as criminal.
“I think they’re intent on prosecuting someone with regard to the provision of gender-affirming care, and they’re fishing for someone to prosecute,” Eve Hill, a partner at Baltimore-based firm Brown Goldstein and Levy, told TPM.
In most cases, the hospitals themselves sued to block or whittle down the subpoenas.
But Hill sued on behalf of patients. She’s representing eight families whose information likely would have been included after the DOJ subpoenaed Children’s National Hospital in Washington D.C. Judge Julie Rubin quashed the subpoena for those families late last month.
“The subpoena appears to have no purpose other than to intimidate and harass the hospital and movants, and those similarly situated,” Rubin wrote. “The government seeks to fulfill its policy agenda through compliance born of fear.”
Children’s National Hospital itself didn’t get involved in the litigation; in a similar case TPM reported in Michigan, doctors also declined to challenge a subpoena, fearful of provoking criminal prosecution or other consequences.
“There’s always the retaliatory possibility that they’ll revoke funding,” Hill said of the administration.
The families Hill represents, alerted to the Children’s National Hospital subpoena by nothing more than news coverage, took the onus of fighting it upon themselves — at the same time that they were seeking new providers for their children, as the hospital stopped prescribing puberty blockers and hormone therapies last August after a months-long pause “in light of escalating legal and regulatory risks.”
“Normal people are not paying much attention to some case happening in Colorado or Boston or Philadelphia,” Hill said. “It’s an unfortunate thing that there are still people, families, out there who don’t know whether their children’s hospital or their clinic has been subpoenaed.”
Hill tried to get protection from the subpoena for patients not involved in the lawsuit, but Judge Rubin limited her order quashing it to the eight families.
In Michigan, a similar subpoena, first reported by TPM, prompted a hospital system to stop providing gender-affirming care to minors entirely. Similar subpoenas have been sent to, at minimum, the Children’s Hospital of Philadelphia, telehealth provider QueerDoc, Boston Children’s Hospital and Children’s Hospital Colorado. Other subpoenas may exist, but have not been publicly acknowledged.
In the case centered on the subpoena of the Children’s Hospital of Philadelphia, too, relief was partial: The judge struck some required information, including identifying details about the minor patients and “the child’s medical treatment records including diagnoses.” The hospital is still required to hand over other information, including about which doctors provided treatment and financial records.
In Colorado, a Children’s Hospital asked a court to throw out a subpoena in its entirety. Like the others, the subpoena demanded information identifying providers, patients and communications with companies that manufacture drugs used in gender-affirming care. There, a magistrate judge has recommended that the subpoena be quashed, finding “compelling” evidence that the government does not believe there’s any real violation of law, but is rather “pressuring pediatric hospitals into ending gender-affirming care through commencing vague, suspicionless ‘investigations.’”
“To countenance such a tactic would be an abuse of the Court’s process,” the judge wrote.
The crusade is unlikely to stop at attacking care for trans minors. This is just the first step to attacking health care for trans adults as well, Hill told TPM, noting another case she is working on challenging a Department of Defense policy that prohibits military clinics and hospitals from providing gender-affirming care for people as old as 19.
“It’s not just minors,” she said.
