President Donald Trump's goal of ending gender-affirming care is not improper and cannot be the basis for quashing a subpoena issued by the Justice Department against a provider of medical treatment for transgender youth, a divided federal appeals court ruled Friday.
The Justice Department announced last year that it had issued more than 20 subpoenas to doctors and clinics that provide gender-affirming care as part of an effort to investigate healthcare
fraud. Federal judges have quashed many of the subpoenas as illegitimate efforts to intimidate providers into ending gender-affirming care.
In a 2-1 decision, a panel of the 9th U.S. Circuit Court of Appeals said the efficacy and long-term risks of the treatments are "uncertain," and the president has the power to align the Justice Department's enforcement priorities with his broader policy goals.
“Every President has law enforcement priorities, just as every President has signature policies (often, the former are components of the latter)," Judge Carlos Bea wrote.
Bea, a nominee of Republican President George W. Bush, was joined in the opinion by Daniel Bress, a Trump nominee. They reversed a ruling that quashed the subpoena against telemedicine provider QueerDoc, sending the case back to the district court to consider other arguments.
The subpoena seeks QueerDoc's personnel files, billing documents, communications with drug manufacturers and records of patients who were prescribed puberty blockers or hormone therapy, among other information, according to the 9th Circuit decision.
American Civil Liberties Union attorney Adrien Leavitt, who represented Washington state-based QueerDoc, said the ACLU would continue fighting the subpoena in district court. QueerDoc has also argued the subpoena is overbroad and burdensome. The Justice Department has said it has reason to believe the company may be misleading people about puberty blockers and hormones.
"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.
He said the San Francisco-based 9th Circuit was the first appeals court to weigh in on the subpoenas.
Trump has signed one executive order defining sex as only male or female — and as unchangeable — and another that seeks to end federal funding of the care for patients under 19. The latter order also directs the Justice Department to “prioritize investigations” into violations of a drug safety law by “any entity that may be misleading the public about long-term side effects of chemical and surgical mutilation.”
Gender-affirming care includes a range of medical and mental health services to support a person’s gender identity, including when it’s different from the sex they were assigned at birth. It encompasses counseling, medications that block puberty and hormone therapy to produce physical changes as well as surgeries to transform chests and genitals, though those are rare for minors.
Most major medical groups say access to the treatment is important for those with gender dysphoria and see gender as existing along a spectrum.
The 9th Circuit majority called discussion around gender-affirming care "an unsettled scientific debate," and said the Trump administration could also justify its opposition to the treatment on ethical or philosophical grounds.
