A divided federal appeals court has ruled that President Donald Trump’s goal of ending gender-affirming care is not improper and therefore cannot be the basis for quashing a subpoena issued by the Justice Department against a provider of medical treatment for transgender youth. The decision came in a 2-1 ruling by a panel of the 9th U.S. Circuit Court of Appeals.
The Justice Department announced last year that it had issued more than 20 subpoenas to doctors and clinics providing gender-affirming care as part of an investigation into healthcare fraud. Several federal judges had previously quashed many of these subpoenas, viewing them as illegitimate attempts to intimidate providers into discontinuing care.
The 9th Circuit panel, in its decision, stated that the efficacy and long-term risks of gender-affirming treatments are "uncertain." Judges Carlos Bea, nominated by Republican President George W. Bush, and Daniel Bress, a Trump nominee, concluded that the president has the authority to align the Justice Department's enforcement priorities with his broader policy objectives.
"Every President has law enforcement priorities, just as every President has signature policies (often, the former are components of the latter)," wrote Judge Bea. The majority reversed a lower court ruling that had quashed the subpoena against telemedicine provider QueerDoc and sent the case back to the district court for consideration of other arguments.
The subpoena in question seeks information from QueerDoc, including personnel files, billing documents, communications with drug manufacturers, and records of patients who were prescribed puberty blockers or hormone therapy. The Justice Department has stated it has reason to believe the company may be misleading the public about puberty blockers and hormones.
American Civil Liberties Union attorney Adrien Leavitt, representing QueerDoc, indicated that the organization would continue to contest the subpoena in the district court. QueerDoc has also contended that the subpoena is overly broad and burdensome. "We’re ready to continue defending one of the most fundamental principles of healthcare: every patient’s right to confidential medical care,” Leavitt said in a statement.
According to the ACLU, the 9th Circuit is the first federal appeals court to issue an opinion on these subpoenas. President Trump has previously signed executive orders, including one defining sex as binary and unchangeable, and another directing the Justice Department to investigate potential violations of drug safety laws by entities that may be misleading the public about the side effects of medical interventions.
Gender-affirming care involves a range of medical and mental health services designed to support an individual's gender identity, which may differ from the sex assigned at birth. These services can include counseling, puberty blockers, hormone therapy, and, in rarer cases for minors, surgeries.
Most major medical organizations support access to gender-affirming treatment for individuals experiencing gender dysphoria, recognizing gender as existing along a spectrum. The 9th Circuit majority described the ongoing discussion surrounding gender-affirming care as an "unsettled scientific debate" and suggested that the Trump administration could justify its stance on ethical or philosophical grounds.