I have been following the current regime’s vicious attack on gender-affirming care for minors – a subset of its abuse of trans people in general – for Unbreaking.org, and this week I wrote a mini-briefing about it. After struggling to get a complex issue down to a few sentences, I realized I had a lot more to say.
The effort to block gender-affirming care for minors is an excellent example of why everyone in this country should fight back against the abusive actions of the extremists in power.
Staring in the summer of 2025, the Department of Justice began sending administrative subpoenas to hospitals and other medical offices that offered gender-affirming care to minors. The subpoenas sought extensive data on their patients.
They did this quietly, without fanfare. Only a few reporters noticed, most of them with LGBTQ+ publications.
Administrative subpoenas are issued by federal agencies and not approved in advance by a judge. They are supposed to be used to further an agency’s regulatory authority, but their use has been substantially expanded.
I suspect DOJ expected the recipients to be frightened and just send the documents. After all, at the time they first sent them, major media companies, wealthy universities, and big law firms were caving in the face of pressure by the regime.
But while a few hospitals shut down their gender-care facilities as a result and others tried to finesse the situation by “negotiating,” a number of institutions – starting with the medical practice QueerDoc in Seattle – went to court to “quash” (or shut down) the subpoena.
And they all won, because the subpoenas were, in fact, inappropriate (to put it nicely). In a couple of cases where the hospital didn’t take action, patients or family members of patients did, with the same results.
Which is to say: fighting back works.
Dithering, not so much.
Rhode Island Hospital was “negotiating” with DOJ but not giving them much. And someone at DOJ had the bright idea of using the fact that they were also “investigating” the Food and Drug Administration in the federal courts for the Northern District of Texas to assert that they could file an action to enforce the subpoena against that hospital before Judge Reed O’Connor.
At this point, Rhode Island’s Child Advocate – an official state office – went to court in Rhode Island to block everything. But while that office got a good ruling from a federal judge in Rhode Island against the original subpoena, they were unable to get the First Circuit Court of Appeals to block the hospital from complying with the court in Texas.
The hospital has now appealed to the Fifth Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi.
Madiba K. Dennie has an excellent summary of everything that happened at Balls and Strikes.
A couple of things that most lawyers know but that the average person doesn’t. Judge O’Connor is an extremely right-wing judge appointed by Junior Bush and is well-known to do whatever Trump wants.
And the Fifth Circuit has been issuing rulings so extreme even the U.S. Supreme Court occasionally throws them out. Of the 17 judges on the court, five were appointed by Democratic presidents, while half of the remaining 12 were appointed by Trump. Of the seven judges on senior status – judges who are semi-retired – two were appointed by Democrats.
I have very little hope that the Fifth Circuit will throw out Judge O’Connor’s ruling and I have no confidence that the U.S. Supreme Court will do anything about it.
And yes, I blame Rhode Island Hospital — which is affiliated with Brown University — for not fighting back in the first place. I wish the state’s Child Advocate had taken action much earlier, though I wonder if that agency was even made aware of the subpoena.
I’m also aware that DOJ or the U.S. Attorney’s office has some kind of grand jury investigation going on in the Northern District of Texas, because it has been reported that some hospitals have received a summons from them. Chris Geidner, who writes the Law Dork newsletter, has a good summary of all that’s going on, including the grand jury action.
Also, I’m pretty sure there are other hospitals who are dithering. So the odds of the regime trying this approach were pretty good.
Fortunately, the families of people receiving gender-affirming care aren’t sitting on their hands. They have filed a nationwide class action – important, because the Supreme Court has made it clear that anything that isn’t a nationwide class action won’t apply to people outside of the jurisdiction in which it’s filed – seeking to block all such requests for data about minor patients.
Some of the rulings in favor of medical practices and hospitals are on appeal, including the QueerDoc case, in which oral argument was heard at the Ninth Circuit back in March. This fight is far from over.
I don’t know how all this is going to play out, but it absolutely reinforces my belief that the only way to deal effectively with the regime that’s busy tearing down both our government and the positive societal changes we have made in my lifetime is to fight back.
Don’t cave. Don’t dither. Just say “no.”