In a memo issued last spring, Attorney General Pam Bondi called on federal law enforcement to join President Trump’s push for gender-affirming child care. “Gender ideology disguised as science has infected an entire generation of children,” she wrote. Three months later, the Justice Department announced it had issued more than 20 subpoenas to clinics and doctors who provide medication and surgery to young transgender people.
According to the subpoena released, the department requested extensive patient records, including names, social security numbers, diagnoses and more. At least six have been struck down by federal judges, and two more have been limited in scope. However, the Justice Department has appealed five of those decisions, and oral arguments in the first case against telemedicine company QueerDoc are scheduled for Friday in Seattle’s Ninth Circuit Court.
This first case is important, legal experts say. That’s because the outcome could affect the Justice Department’s strategy in other appeals that are likely to last until the end of the year. If the appellate courts differ significantly, a so-called circuit split may occur, increasing the likelihood that the dispute will reach the Supreme Court.
Federal district courts across the country have previously taken similar positions to explain their decisions to withhold subpoenas. The justices wrote that the Justice Department was “motivated solely by malice” or “sought to pursue a policy agenda through compliance born of fear” and that the records sought “exceeded the authority granted to it by Congress.”
“There is no clearer evidence of ulterior motives than the government’s own repeated declarations that it seeks to end the very practices it claims to be merely investigating,” U.S. District Judge Jamal Whitehead wrote in October regarding Trump’s executive order on gender-affirming care. , the ruling halted a subpoena issued to QueerDoc, citing an article posted on the White House website that has since been deleted, noting how President Trump is “fulfilling his promise” to discontinue gender-affirming child care.
“There is more than a ‘smell’ of malice,” Chief U.S. District Judge Kathy Bissoon wrote Monday in dismissing the amended subpoena against the University of Pittsburgh Medical Center. The government offered to request the anonymized records, but filed an appeal before Bissoune’s final order was posted. “Perhaps it borders on a stench,” the judge wrote.
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Asked for comment on the district court’s decision and its appeal, a Department of Justice spokesperson wrote in a statement: “As Attorney General Bondi has made clear, the Department of Justice will use every legal and law enforcement tool available to protect innocent children from being mutilated in the name of ‘protection.’
queer dock incident
The subpoena to QueerDoc did not arrive in the form that would be broadcast on television, said Crystal Beer, the company’s physician founder. There was no crisp manila envelope with the words “Thank you for your meal.” Instead, Beal was making a series of virtual clinic appointments when she saw a frantic message from her accountant, asking if she could forward the government’s email to Beal.
That wasn’t surprising. “The Trump administration operated on a platform of ending gender-affirming care for youth. That was a promise they made,” Beal said. “Even though it’s expected, it’s still scary.”
The subpoena asked for the names, dates of birth, diagnosis codes, and social security numbers of trans patients receiving QueerDoc care, personal information that the trans community fears could be used by the government to target individuals. The subpoena also requires contact with drug companies and insurance claims, but QueerDoc does not dispense drugs or accept insurance payments.
The Justice Department said it is looking for indications that clinics and doctors offering gender reassignment treatment are making false or misleading claims about hormones or puberty-blocking drugs, or using fraudulent diagnostic codes to provide medications. “Based on information from whistleblowers and experts, there may be violations of federal law related to gender-related treatment of minors,” the Justice Department argued in its opening brief in its appeal of the QueerDoc decision.
Part of that debate hinges on the idea that these drugs are prescribed off-label when used for gender-affirming care, meaning the FDA has not approved them for use for this purpose. However, off-label prescribing is common in the medical industry and legal for doctors. The brief justifies the Trump administration’s proposed policy on gender-affirming care, calling it “highly controversial.”
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The order revoking QueerDoc’s subpoenas was issued in October, at least a month after the order halting subpoenas to Boston Children’s Hospital and Seattle Children’s Hospital, but the government asked that QueerDoc’s appeal be given top priority, said ACLU attorney Adrian Leavitt, who is working with QueerDoc. Levitt suspects it was a deliberate decision by the Justice Department to first confront small, independently run clinics without in-house legal teams, and then to confront large children’s hospitals with more resources.
“I think the fact that the government sought and was granted an expedited review in this case, but not in other cases, has profound implications,” Levitt said.
The Justice Department did not respond to questions from STAT about its decision to proceed with the appeal of the QueerDoc ruling ahead of others, but outside legal experts agreed that the timing was notable.
first impression
The Ninth Circuit’s rules regarding QueerDoc subpoenas set precedent only for cases heard within the same circuit. However, such initial rulings may still be persuasive to other judges who can consider related cases when making decisions.
“It’s naive to think that judges won’t consider these other cases and consider the arguments that support their decisions,” said Kyle Faggett, a health care and life sciences attorney at Foley & Lardner.
Early appellate decisions like the QueerDoc case could also provide guidance to clinics making risk calculations when it comes to providing gender-affirming care. Since the Trump administration took office, dozens of hospitals and health systems have limited or canceled gender-affirming care options for young people.
Rachel Landauer, a clinical instructor at Harvard Law School’s Health Law and Policy Clinic, said potential government lawsuits and potential loss of government funding are among the risks clinics face, but there are also risks to the patient-clinician relationship if care is withheld. “I think the appellate court’s decision will be important because it will bring us closer to a final resolution,” she said.
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Although providers won their initial legal battles over the Justice Department subpoenas, that didn’t always bring agency leaders the peace of mind they needed. Some hospitals that have suspended or restricted government subpoenas, including UPMC and Children’s Hospital Los Angeles, halted gender-affirming care last year before a judge issued a decision. (In both cases, the subpoenas were challenged by the patients and their families, not by the hospitals. CHLA patients reached a settlement with the government, but UPMC’s subpoenas were rescinded, a decision the Justice Department appealed.)
Other clinics held out longer. Children’s Hospital Colorado confirmed it would suspend gender-affirming care for minors in early January, days before a judge recommended rescinding a Justice Department subpoena. Perhaps weighing heavily in the calculation are proposed federal regulations that would ban Medicare and Medicaid funding to hospitals that provide pediatric gender reassignment care, and a tweet from then-Health and Human Services General Counsel Mike Stewart announcing that he had referred Children’s Colorado to the HHS Office of Inspector General for investigation.
“It’s probably not surprising, but it’s very discouraging and disheartening,” Beal said of clinics that have stopped providing treatment. “Nearly all of these facilities make the decision to stop caring before they actually need to stop providing care.”
At QueerDoc, we continue to care. Beal, who is queer, said, “I want to be the adult that I didn’t have in my life for the young people in my community.” “This is the role of the elders in the community.”
