Care Under Subpoena: The New Enforcement Front in Gender-Affirming Care for Minors

Few areas of health care are moving as fast as gender-affirming care (GAC) for minors. As our AHLA conference coverage continues, one panel walked us through a landscape reshaped by executive action — and a newly aggressive investigative posture from federal enforcers.

The Legal Backdrop

President Trump issued executive orders directing federal health agencies to curtail and defund GAC, and the U.S. Department of Justice (DOJ) to prioritize enforcement against providers. In response, the Health and Human Services Department (HHS) issued a report on GAC, Secretary Kennedy declared that GAC is neither safe nor effective, and HHS issued proposed rules tying federal funding and conditions of participation to that conclusion. HHS attempted, in short, to set a federal standard of care — a benchmark the government could use to cut off funding and potentially exclude providers from Medicare and Medicaid. Twenty-one states pushed back, challenging the declaration in Oregon v. Kennedy, and the court struck it down as unlawful. But the panel warned that the federal threat is far from over: even with the declaration set aside, the government has other ways to exclude providers.

The Enforcement Tools

So what tools are DOJ using? It is leaning on a misbranding theory under the Food, Drug, and Cosmetic Act — including off-label use of hormones and puberty blockers — to investigate prescribers and medical institutions. There is a catch, though, as the panel pointed out: in pediatrics, more than half of all prescriptions are off-label. The investigations also seem to target providers accused of billing around state bans — for example, coding for precocious puberty instead of gender dysphoria. And DOJ’s requests have been sweeping: hospital employee personnel files, patient and guardian identifying information, full medical records, and more, raising real questions about how all that data will be used. Courts have quashed many of the DOJ’s administrative subpoenas, often pointing to an improper purpose. Meanwhile, some academic institutions have disclosed publicly that they received federal grand jury subpoenas out of the Northern District of Texas. As the panel emphasized, this area is changing fast.

The Colorado Children’s Bellwether

The panel wrapped up with a case that captures the bind providers can find themselves in. After the Kennedy declaration, Children’s Hospital Colorado suspended care. Patients sued, arguing that Colorado’s antidiscrimination law required the hospital to keep providing GAC. The Colorado Supreme Court agreed the trial court should have issued a preliminary injunction — pointing to irreparable harm to patients, the reduced exclusion risk after Oregon, and the plaintiffs’ likelihood of success — but it added that no injunction can force a provider to prescribe. The hospital reinstated the care as an option, yet its physicians still declined to prescribe it. When the hospital told patients the injunction did not require providers to prescribe, the plaintiffs moved for contempt, and the court issued an order to show cause, with a hearing set for July 20. The challenge, the panel reminded everyone, is that hospitals cannot make prescribing decisions or override independent medical judgment.

We’ll keep the coverage coming from New York. Stay tuned.

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