Inside CHOP’s fight against Trump’s Justice Department investigation into gender-affirming care

Children’s Hospital of Philadelphia had just one day remaining before a deadline to turn over, under federal subpoena, detailed medical records of youth who sought gender-affirming care to President Donald Trump’s administration.

Instead, the hospital implored a federal judge to intervene to protect its patients’ privacy rights, opening a legal fight that is still ongoing.

Releasing the information would “reveal the most intimate, sensitive, and often painful details of their young lives,” CHOP said in a July 8 filing, accusing the U.S. Department of Justice of unfairly targeting “a group of patients who have struggled with deeply personal issues concerning gender, and who have been victims of harassment and discrimination.”

The June 11 subpoena gave CHOP about a month to hand over the names, dates of birth, Social Security numbers, and addresses and parent/guardian information of patients who had been prescribed puberty blockers or hormone therapy.

The sweeping subpoena also sought documents related to how doctors make decisions in prescribing those medications that help patients to have a body that matches their gender identity, including details such as “clinical indications, diagnoses, or assessments.”

And federal investigators ordered CHOP to provide documents related to “informed consent, patient intake, and parent or guardian authorization for minor patients,” including any disclosures about “off-label use” and “potential risks” of giving patients younger than 19 puberty blockers or hormone therapy.

CHOP runs one of the nation’s largest clinics providing medical care and mental health support for transgender and gender-nonbinary children and teens and their families. Each year, hundreds of new families seek care at CHOP’s Gender and Sexuality Development Program, created in 2014.

CHOP’s legal filings provide the first publicly available window into the hospital’s strategy for fighting the subpoenas received by at least 19 other hospitals nationally that are under scrutiny for treating transgender youth. The DOJ’s response shows how the Trump administration is investigating CHOP’s program, looking into potential healthcare fraud and misconduct that could warrant civil or criminal penalties.

CHOP did not respond Thursday to a request for comment.

The court records make it clear that CHOP is fighting back, even as a growing number of health systems across the country back off gender-affirming care services for youth under threat of losing critical federal financial support.

In a meeting with the DOJ two days before the deadline, CHOP’s lawyers told federal investigators that the hospital would provide some records but refused to produce any that compromised patient privacy.

On July 8, CHOP filed two motions in federal court in Philadelphia before U.S. District Judge Mark A. Kearney: One sought — unsuccessfully — to seal the subpoena from public release, arguing the mere knowledge of the subpoena would stoke fear and panic among its patients and parents and potentially put its staff in harm’s way from attacks and threats.

The other motion sought to limit the subpoena’s scope, claiming it “risks imposing significant trauma on patients and their families who did nothing more than seek out lawful medical care.”

Gender-affirming care for children and adolescents has been deemed medically appropriate by the American Academy of Pediatrics and other major medical and mental health organizations. Research shows young people whose gender identity does not match the sex they were assigned at birth, a condition known as gender dysphoria, suffer higher rates of suicide, self-harm, depression, and anxiety.

Such care was initially targeted by Trump in a January executive order that bars federal funding for gender-affirming care, including hormone therapy, puberty blockers, or surgeries, for transgender patients under age 19. In the Philadelphia area, Penn Medicine and Nemours Children’s Hospital have limited such care in recent months.

The Trump administration and critics of gender-affirming care say the research supporting this type of treatment is, at best, inadequate and, at worst, “junk science,” calling programs like CHOP’s harmful to youth who are not mature enough to make life-altering decisions.

“The investigation relates to potential misconduct committed against vulnerable children, leaving lifelong mental and physical side effects and consequences,” DOJ lawyers wrote in an Aug. 4 response, which cited a case related to child pornography as the basis for its authority to investigate and protect children against harm.

The federal law known as Health Insurance Portability and Accountability Act (HIPAA) protects sensitive patient health information from disclosure.

However, the same law gives federal prosecutors the right to subpoena patient medical records to investigate potential healthcare crimes.

Last month, U.S. Attorney General Pam Bondi announced that the Justice Department had sent more than 20 subpoenas to doctors and clinics providing gender-affirming care to children as part of an investigation into violations of criminal and civil laws.

The CHOP subpoena case includes legal documents that show the DOJ is investigating billing practices, informed consent, and marketing and use of drugs “off-label,” or for a condition not specifically approved by the U.S. Food and Drug Administration (FDA), a practice that is legal and widely accepted by doctors. However, it is illegal for pharmaceutical companies to promote or market a drug for off-label uses.

It is also unlawful for doctors to provide misleading or false information about the drug’s effectiveness for off-label uses, or for healthcare providers to bill insurance companies for an off-label use of medication under the guise of a medically diagnosed FDA-approved use.

“The government is conducting an investigation into, among other things, whether off-label promotion and/or unlawful dispensing of puberty blockers and cross-sex hormones for use by minors violated federal law,” DOJ lawyers wrote in opposition to CHOP’s motion to narrow the subpoena’s scope.

CHOP said it strictly adheres to all healthcare and consumer laws, saying the government has “no facts” that point to potential consumer-protection violations or any misconduct at CHOP.

But the DOJ questioned why it should take CHOP at its word, accusing the hospital of “bankrolling” and running “a specialty clinic that provides controversial pharmaceutical and surgical care for minors.”

”CHOP seems to believe that if a provider operates in a `sensitive’ area of medicine, that medical provider should also operate in a zone of impunity where the government is unable to subpoena the actual records of treatment to patients,” the DOJ said in court filings.

CHOP argued that patients’ privacy rights should prevail over the Trump administration’s desire to get the medical records of a “uniquely vulnerable population,” while the DOJ claimed it had a “compelling interesting in identifying illegal activity” on behalf of citizens and protecting children.

In their arguments, both CHOP and the DOJ cited United States v. Westinghouse Electric Corporation, a 1980 case centered on medical privacy and the public interest in health concerns and occupational safety.

In that case, the operator of a chemical plant, where employees were complaining about an allergic reaction, had refused a government subpoena to turn over its workers’ medical records. The Philadelphia-based U.S. Court of Appeals for the Third Circuit ordered Westinghouse to release the medical records, setting legal precedent by outlining ground rules for releasing such information.

Two clinicians leading CHOP’s gender-affirming care program told the court how its patients and their families have been rattled by the Trump administration’s opposition to what they see as essential medical care.

In its July 8 motion to limit the subpoena, CHOP provided a joint statement, or declaration, from Linda Hawkins, a licensed professional counselor, and Nadia Dowshen, a pediatrician and medical director of CHOP’s Gender and Sexuality Development Program. Hawkins and Dowshen cofounded the program.

“Patients of the program harbor substantial fears that they are being surveilled or targeted for exposure by opponents of the treatment,” they wrote. “This fear will deter them from participating in the activities that are hallmarks of a happy childhood — schools, clubs and other extracurricular activities — out of concern that they will be singled out for being transgender."

It would be “extremely distressing” for patients to worry that federal prosecutors may seek to interview them about their care at CHOP. They would worry for their providers and their parents, too. This stress could result in “thoughts of, or completed, suicide,” the clinicians said.

Releasing their medical records to authorities would also have a chilling effect on other children and teens, who may be too afraid to seek care at CHOP, they wrote.

When patients come to CHOP, they do not expect federal prosecutors and investigators to have “unfettered access” to their medical records, said Joseph St. Geme III, the hospital’s chair of the Department of Pediatrics and president of the medical staff, in his own statement to the court.

The DOJ’s subpoena would set a precedent that a federal law enforcement agency can seek and obtain private health information on any patient, not just those seeking gender-affirming care, he said.

Also, patients would be reluctant to disclose sensitive information, making it more difficult for doctors to effectively treat them, Geme said, arguing for keeping the subpoena under seal.

The DOJ rejected CHOP’s concerns about creating panic among patients or causing staff to be subjected to violence, calling them “wholly speculative” and “hypothetical.” Government lawyers said the DOJ intended to protect and safeguard the records it obtains from CHOP.

The judge ruled in the DOJ’s favor, denying CHOP’s motion to seal the legal proceedings from the public.

On Wednesday, Judge Kearney ordered the DOJ to submit a letter to him and CHOP by Sept. 3 on whether a healthcare provider has challenged a similar subpoena before a court.

The judge also asked the DOJ to provide an update by Sept. 24 on the status of its subpoenas to the other hospitals and clinics regarding gender-affirming care.