By admin 
A judge in Denver took the unusual step Thursday of closing her courtroom to the public — including the media — as doctors from Children’s Hospital Colorado testified about their decisions to no longer write prescriptions for young transgender patients.
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The doctors requested anonymity out of fear of punishment by the federal government for having previously treated transgender youth. Underscoring that threat, Children’s revealed Thursday that it has been referred again for investigation by federal authorities over its care of trans kids.
In court Thursday, an attorney for Children’s said the investigation is part of “a reign of terror by the federal government against transgender care providers.”
“We think it’s horrible,” the attorney, Elliot Peters, said.
The doctors’ testimony came on the first day of an extraordinary trial during which attorneys for young transgender patients are seeking to hold the hospital in contempt of court, with the potential punishment of $50,000-per-day fines.
The attorneys allege that Children’s is violating a court order prohibiting the hospital from refusing to provide gender-affirming care for trans youth. In this case, that means writing prescriptions for things like hormones or puberty-blockers. Doctors at the hospital are continuing to provide mental health support and lab testing to transgender patients, and the hospital has never provided gender-affirming surgeries to trans youth.
The Colorado Supreme Court ordered the injunction earlier this year. The state’s highest court ruled there is sufficient evidence that Children’s discriminated against trans youth when it suspended certain forms of gender-affirming care amid the threats from the federal government.
Little change since injunction
But, seven months after the patients first sued and three months after the injunction was issued, not much has actually changed.
The young patients still aren’t able to receive prescriptions at Children’s, meaning some patients may be entering puberty inconsistent with their gender identity and others may be involuntarily “detransitioning,” meaning the effects of longstanding treatment may be reversing.
“The only people bearing the harm of this are children belonging to a minority group facing threats all across the country,” attorney John McHugh, who represents the patients, said during opening statements of the contempt trial Thursday.
On the witness stand, one mother said her daughter wasn’t receiving hormone therapy and puberty-blockers when the lawsuit was filed but has since begun the treatment, though not at Children’s. She said her family was told by her daughter’s doctor that all they could do for patients under 18 is “order labs and have a conversation, basically.” She said the doctor cried during the call.
Her daughter has had to go out of state to receive treatment.
Another mother said her family has stopped seeing her daughter’s doctor at the hospital, even though her daughter has not yet started hormones or puberty-blockers. While her daughter could get regular bloodwork now to watch for the onset of puberty, she said her family didn’t see the point if they would just run into a brick wall when puberty does start.
“It’s a concern about the care we need now so that when it happens we are ready to go,” the mother said.
Both women testified in open court under pseudonyms.
The case has been granted class-action status, meaning that McHugh and his co-counsel, Paula Greisen, represent hundreds of transgender patients under the age of 18 who had been receiving care at Children’s before the hospital suspended that care around the first of the year.
Attorneys for Children’s argue that the hospital has complied with the injunction, which said the hospital “is prohibited from refusing to provide medically necessary gender-affirming care to transgender patients” while the lawsuit is pending.
Peters said the injunction didn’t go as far as requiring Children’s to ensure that patients would receive care. He said the hospital updated its scope of services statement to say that it provides gender-affirming care when medically necessary but that the hospital “can’t guarantee what decisions providers will choose to make.”
“We’ve done what we can,” he said during opening statements.
Not Children’s employees
Key to this argument is the fact that Children’s doesn’t employ the doctors who work in the hospital. Instead, those doctors — both those providing gender-affirming care and those who specialize in other areas — are largely employed by the University of Colorado School of Medicine.
Shortly after the injunction was issued, doctors at the hospital said they would not resume writing prescriptions, citing their own risk of punishment by the federal government.
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Peters said Children’s has no say over the treatment decisions of doctors it doesn’t employ. In addition, the hospital’s contract with doctors requires those doctors not to do anything that could jeopardize their access to federal payment systems like Medicare and Medicaid. The federal government has been threatening to exclude hospitals and doctors from Medicaid for providing gender-affirming care to transgender patients under 18.
“Plaintiffs won’t prove contempt because there has been no contempt,” Peters said.
A “non-delegable” duty
To the attorneys for the patients, the hospital’s argument amounts to passing the buck.
They argue that what’s happening is discrimination. Doctors at Children’s continue to write prescriptions for hormones and puberty-blockers to cisgender patients when medically appropriate. And no one in the case has argued — at least not publicly — that the prescriptions are medically inappropriate for trans youth.
McHugh said the hospital can’t escape accountability for discrimination happening within its walls by delegating that responsibility to someone else.
“The hospital is blaming the providers,” McHugh said. “The hospital told the providers they could refuse to issue prescriptions to an entire class of patients.”
What the doctors have to say about this is unclear because the public was barred from hearing their testimony, which took up most of Thursday following the sides’ opening statements.
The doctors had originally asked to testify under pseudonyms, along with other protections for their identities. But, just before the first doctor was called to testify Thursday, Denver District Court Judge Ericka F. H. Englert said she had issued an order closing the courtroom for the testimony.
New federal investigation
Underlining the threats from the federal government, Children’s Hospital’s lawyers said Thursday that U.S. Health and Human Services Secretary Robert F. Kennedy Jr. has again referred the hospital for investigation.
Kennedy’s agency previously referred Children’s for investigation by HHS’s Office of the Inspector General late last year. The investigation hit a roadblock when a federal judge in Oregon blocked Kennedy’s declaration against gender-affirming care, upon which the referral was based.
The new investigation comes after HHS released a report on gender-affirming care titled , which alleged instances of improper behavior by transgender care providers. Specifically, the report includes Children’s in a group of more than 90 providers alleged to have billed for puberty-blockers for patients ages 9 to 17 using a diagnosis code for a general endocrine disorder.
“The bill did not list either of the two conditions that usually explain this treatment in children: a gender-related diagnosis, or puberty starting unusually early,” the report stated.
In the letter referring Children’s for investigation, provided to The Sun by the hospital, Kennedy wrote that this represents “potentially anomalous billing patterns” that warrant further scrutiny. The report did not say how many times this was alleged to have happened.
In a statement, Children’s said it has always provided “appropriate care in compliance with applicable state and federal requirements governing medical and mental health care.”
“We take our obligations related to billing, coding and regulatory compliance seriously,” the hospital’s statement read, “and we have no evidence of any billing improprieties.”
The contempt trial continues Friday and is expected to stretch into a third day scheduled for late next week. At the end, it is unclear whether Englert will issue an immediate ruling.
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