Title: Trump's DOJ Probes Providers of Trans Healthcare

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Brian Lehrer: Brian Lehrer on WNYC. Now, this shocking new report coming from The Washington Post. Over the last two months, they say President Trump's Justice Department has issued more than 20 subpoenas demanding sensitive information from medical providers on transgender patients under 19 years old. This, of course, comes after the Supreme Court ruled in June to uphold a Tennessee law banning gender affirming care for adolescents, allowing 23 states with similar laws on the books to follow suit. Many of these reported investigations are in states where gender affirming care is, or was at the time, legal. Joining me now to share her reporting on the chilling effects these subpoenas are having on medical providers and their patients, and at least potential effects on people's privacy, is Casey Parks, Washington Post reporter who covers LGBTQ issues for the paper. Casey, thanks for coming on. Welcome to WNYC.

Casey Parks: Thank you so much for having me.

Brian Lehrer: Let me start with a very basic question. With these subpoenas, what information is the Justice Department requesting from medical providers?

Casey Parks: The subpoena itself is very broad. One of the lines, it says every written record or any recording of any kind, so that includes even encrypted text messages doctors may have sent on WhatsApp or apps like Signal. The far-reaching thing, one of the scariest things for patients, is it requests all information about patients. That could be Social Security numbers, their addresses, any information about their parents. It includes entire personnel files for doctors. At one point, it says any diaries doctors have kept. It basically is requesting anything possible it could get related to gender transition care.

Brian Lehrer: What's the justification, the stated justification at least, for the subpoenas? Is there a particular law, or are there particular laws that the DOJ believes medical providers have violated, or may have?

Casey Parks: The care itself is not federally illegal. President Trump did sign a couple of executive orders as soon as he got into office, trying to ban this care. The way he was doing it is he was saying, "We'll withhold federal money from hospitals that allow this." It wouldn't technically be a criminal law. Judges have blocked those orders. What the subpoenas appear to be trying to do is prosecute maybe either civilly or possibly criminally, doctors, based on false billing codes. One of the things they're saying is that they're alleging that doctors are using a billing code for endocrine order unspecified. They're saying you need to be coding that as gender dysphoria or gender identity disorder, which is an out-of-date diagnosis code. It seems that they're trying to catch people on this billing code issue.

Brian Lehrer: Technicality on the idea that they're obscuring what the care they're providing really is, because they don't want the Trump administration or anyone else to see it and make it a target?

Casey Parks: Right, and there were some provisions in the Affordable Care Act that, at one time, we're not going to allow people to get this kind of care. People could have Christian insurances that might not want this. The other thing that they were saying is they would prosecute people, maybe based off of the False Claims Act. In the subpoenas or in a workshop where they discussed these subpoenas, the DOJ officials did not say what that would mean. They had other panelists in this day-long FTC workshop where they describe what they think false claims and fraud would be or violations of FTC fraud rules.

They were things such as wearing pronoun stickers, things such as saying hormone replacement therapy, which any woman with menopause might dispute that as a fraudulent term. They, at one point, said phrases like assigned male at birth or Orwellian design, to change how we view things. They even put up specific hospitals' advertisements where they said, "We offer this care." They were saying that's fraud because it's teaching people that you can change your gender, and you really can't. That's what they're alleging.

Brian Lehrer: Yes, but those, what you just cited, might be arguments at the policy level or in a cultural context. These subpoenas are coming from the Justice Department, so there's an implication there. Unless they're just being really overbroad and using the Justice Department for political purposes, there's not necessarily a crime there. Or am I wrong?

Casey Parks: Right. That's what advocates are saying is that people have not violated any statutes or federal policies. No one has committed any crimes. Instead, what they believe the Justice Department is doing is just trying to intimidate people. One of the things they point to is the fact that Attorney General Pam Bondi announced this investigation. That's really unusual. Attorneys general don't usually announce investigations until they've actually done them and found something out. I've personally tried to confirm many investigations in my reporting career, and they never will.

You don't find out until the person has been charged with something. They were saying that is designed to tell people we're coming after you. Whether or not these subpoenas actually ever turn anything up or lead to any criminal prosecutions or civil prosecutions, they are having their desired effect because a dozen hospitals have closed their programs in the last month. These aren't in like Louisiana, where I grew up. These are in some of our most liberal states. UCLA's program closed down. They had 3,000 patients. Every clinic in Chicago has closed down their programs.

Connecticut. These are places where people in Texas and Florida have fled to in recent years. You're talking about families who uprooted their lives, maybe moved to Connecticut, which is much more expensive than rural Texas, so that they could get their children what they believe is life-saving medical care. Now they're losing that care even in these really liberal states.

Brian Lehrer: I'll ask you in a minute about an example in Philadelphia that you wrote about in your article. To what you were just saying, maybe it's important for the listeners to know that this wasn't a Washington Post investigation where you dug up the fact that they've issued these subpoenas, the kinds of things that are generally withheld from the public until and unless there's an indictment of some kind. As you report, Attorney General Pam Bondi said last month that the Justice Department had issued more than 20 subpoenas seeking to hold "medical professionals and organizations that mutilated children in the service of a warped ideology accountable."

Again, there's the culture war frame on this that she's trying to have intersect with a legal frame since this is the Department of Justice, not the Department of Cultural Ideology. You know what? Let me do a listener invitation. This may be fishing for a needle in a haystack, but I wonder if there's any doctor listening now, or anybody affiliated with any medical institution who has received one of these subpoenas or has firsthand knowledge about one of these subpoenas and wants to call up, even anonymously, and describe what you've seen and what effect you think it might be having on you or your hospital or other medical institution.

212-433-WNYC, 212-433-9692. Call or text, or anybody else can call or text with a question or a comment for our guest, Casey Parks from The Washington Post, co-author of the article Government's Demand For Trans Care Info Sought Addresses, Doctors' Notes, Texts. 212-433-9692. Maybe you're in one of the families whose information may have been leveraged out by this, or you're concerned that you might be. 212-433-9692, just in case there's anybody out there who might be able to help Casey Parks from The Washington Post and us report this story. 212-433-9692. Philadelphia, you got hold of the subpoena sent to the Children's Hospital of Philadelphia and found that it came from the Department of Justice's Consumer Protection Branch. Can you tell us about that branch and maybe about Jordan Campbell, who heads it, and his particular interest in this issue?

Casey Parks: I cover trans issues, not the federal government, so I can't tell you a lot about the Consumer Protection Branch because I just don't cover that.

Brian Lehrer: That would have been your co-writer of this article, but okay.

Casey Parks: Yes, we've got smarter people than me at The Post on the federal government. Jordan Campbell is someone who's a lawyer who was representing people who identify as detransitioners before Trump took office. What that means is he has clients or he had clients when he was working at this law firm, who, at one point in their lives, probably in their teenage years, identified as transgender, went to hospitals or clinics and got some medical intervention. That could be what's called puberty blockers. These are medications that basically tell your brain to stop producing hormones, and that would make you not go through puberty at that time.

These are medications that are used for endometriosis in women, for men with prostate cancer. It just basically says don't produce these hormones right now. What doctors say is that gives patients time to think about if they want to transition. A decent percentage of people who start those medications then go on hormones, so estrogen or testosterone, to go through the puberty of their gender identity. These patients would have had those interventions. Some of them had surgery, though surgery is very rare. Roughly 200 adolescents across the country a year get surgery.

Then, later, they decided, I'm not actually transgender. I regret this care. I was too young to decide to get it. I want to sue the hospital that gave me this care. Jordan Campbell represented roughly a dozen patients like that, and now he is in the federal government. There's another lawyer who also represented detransitioners, Harmeet Dhillon. She's also in the Trump administration and the DOJ now. Now, at least Jordan Campbell is helping shepherd some of these investigations.

Brian Lehrer: Those, of course, would be civil lawsuits, not criminal charges necessarily. I guess the Justice Department might get involved in civil cases, too. Also, I see in your article, Attorney General Bondi issued a lengthy memo in April directing Justice Department prosecutors to investigate doctors who treat trans adolescents. She cast the trans care doctors as violating a federal law that bars female genital mutilation, a crime punishable by up to 10 years in prison. That's part of the legal rationale, according to them. Then you report Democratic attorneys general and legal experts dispute Bondi's interpretation of that rarely used law.

We're getting a number of texts from people who want to know about the privacy of the patients, as well as the doctors, under the law in this respect. One listener writes, "How, under current HIPAA law," that's the patient medical privacy law, "is providing this information even legal?" Another one, "Please explain why HIPAA laws wouldn't protect the doctors." Another listener. "Aren't there medical privacy laws?" How would you begin to address those listeners?

Casey Parks: Yes, HIPAA has a law enforcement carve-out, which means that if law enforcement or the Department of Justice has a legitimate reason for needing your records, they can get them. Now, the operative word for some people might be legitimate, but the federal government, in this case, believes they have a legitimate reason, and so HIPAA would not necessarily protect your records.

Brian Lehrer: I think we have one of your sources in your story calling in. Let's see. Jason in Brooklyn, you're on WNYC with Casey Parks from The Washington Post. Hi, there. Oh, he hung up. Okay. Maybe he wanted to say something off the air. Jason, you can do that if you want. You can call up and say something on the air. We've been talking about the potential effects on doctors for the most part because they're the ones who might get prosecuted. What about the potential effects of the subpoenas on patients and their families?

Casey Parks: For starters, patients have no idea if their information has been turned over. My colleagues and I called probably 50 hospitals and doctors across the country to find out who got a subpoena. None would talk on the record. Almost none would even tell me off the record, yes or no. I had two tell me off the record they didn't get a subpoena, but people wouldn't even talk to me on Signal. These are people I've interviewed tons of times who've previously let me even sit in on appointments, who are now just terrified.

One mother wrote me yesterday, and she said, "I've emailed and they won't tell me if they got subpoenaed, so I have no idea if my kid's records have been turned over to the government, if my records have been turned over to the government." Parents are terrified. If you look at a place like Texas, which, a couple years ago used CPS investigations against parents for letting their kids be trans, parents are terrified that their kids might be taken away from them, that they might eventually be prosecuted under this kind of thing. The more immediate effect is that because so many hospitals are scared of losing federal funding, of potentially being prosecuted, so many of them have shut down their programs. What that means is children or adolescents, people often say children, but it's usually 14 and above, so we're talking more teenagers here-

Brian Lehrer: Right. Sure.

Casey Parks: -they have lost access to their medication. That is actually really dangerous. You're not supposed to just stop hormones immediately. There's a lot of physical ramifications you could have. Kids would be going through menopausal-like symptoms where they'll be having hot flashes, won't be able to sleep. They also have huge mood swings. This would be like the worst period of your life, where you just stop these hormones. Being a teenager is already really hard. You already have a ton of mood swings, so adding that into a really vulnerable population, most of whom have suffered with depression and anxiety, parents are scared that their children might really take a really bad mental health swing. Then they also go through unwanted physical changes.

A trans boy who is immediately yanked off testosterone, he could get his period that very week. He could start developing breasts. A trans girl who's taken off estrogen and testosterone blockers could start growing facial hair. Her voice could start deepening. There's a lot that parents are worried about because of these subpoenas.

Brian Lehrer: Listener writes, "The guest skips over the fact that puberty blockers are not FDA approved for gender transitioning." Is that a true fact?

Casey Parks: Yes. Most pediatric drugs are used off-label because the FDA has a harder time running trials on children. In order to get FDA approved for something, you have to have studies, and so most pediatric medications are used off-label. These medications have been used on children for decades, children who have precocious puberty. Let's say your kid starts puberty at 9, and that's just really too young for them. These exact same medications have been used for that. They're still allowed for that. They're just only banned for gender transition in some states.

Brian Lehrer: Right. That's a crucial distinction. There's a difference between not being FDA approved for gender transitioning and doctors prescribing them for that in such a way that would put the doctors in violation of the law. Is that a distinction you want to make?

Casey Parks: Yes. They are banned in roughly half of US states at this point. Doctors who were continuing to issue them in let's say Alabama, I can't remember, some of these bans are actually held up in the courts, but let's say, Tennessee. If a doctor in Tennessee right now prescribed a trans child puberty blockers, they would be violating Tennessee state law, and they could face fines, prison time. There are no federal laws, though, that block the use of puberty blockers on trans adolescents. It's not against the law to use off-label medications. Like I said, doctors do this all the time for adults, but it's very common in pediatric care because it's just really hard to run studies on children. Most parents don't want to sign their children up for experimental studies on medications.

Brian Lehrer: Before you go, this is more of a political question, but there's less, from the numbers I've seen, than 3,000 adolescents nationwide. We're a country of 300 million people. Remember, there's less than 3,000 adolescents nationwide receiving hormonal treatments or puberty blockers. Why is there so much attention on the medical treatments of such a small population?

Casey Parks: This is a political question. After the Supreme-- Can you hear me?

Brian Lehrer: I can hear you. Yes, you dropped out for a second, but you're there.

Casey Parks: Hello? Hello?

Brian Lehrer: Can you hear me?

Casey Parks: I can hear you.

Brian Lehrer: Go ahead. We got you.

Casey Parks: Okay. In 2015, the Supreme Court legalized same sex marriage. For years, same sex marriage had been a real pole driver for both the right and the left. After that happened, a lot of right-wing strategists came together, and they were like, "How do we continue to get people to the polls when this issue has been settled?" Initially, they tried bathroom bans. You might remember in North Carolina in 2016, they tried to do a bathroom ban, and people everywhere really revolted. Bruce Springsteen said he wouldn't go there.

The NCAA canceled their conference. From there, they've spent basically the last decade trying to figure out what is the messaging that would work with people. The two that they've really come up with are sports and medical care. Groups such as the Heritage Foundation, the American Principles Project, the Alliance Defending Freedom, they wrote model legislation and they tried for a couple of years to pass it. Even Southern super conservative states initially voted them down. Most states took three tries to get the state bans in place.

As they've gone along, they have been able to fine-tune their message. They've spent hundreds of millions of dollars on network TV ads to tell people that this is a problem. They have been able to use language that really resonates with people. The word they most commonly use, which is also in Pam Bondi's memo, is mutilate. Children are not actually being mutilated. Surgery is very rare. Roughly 200 adolescent trans guys had top surgery last year. That would be a double mastectomy. Bottom surgery is very rare. I have only ever seen one case where I think it was an 18-year-old who got bottom surgery.

They're saying people are being castrated, they're being mutilated. Some children have had surgeries, but roughly 2,000 teenagers had breast implants put in last year. They've now fine-tuned it to chemical castration and saying that these drugs sterilize people. If you go out and you have this message of the left has this crazy ideology where they're sterilizing our children, that scares people, especially people who really care about birth rates and people having children. It's a very targeted, well-funded campaign to make people afraid of this issue.

Brian Lehrer: I guess as one last follow-up question, when we talk about what's the role of the government in this conversation, here are some texts that have come in from people very skeptical of any of this gender-affirming care. One listener writes, "Address the potential damage hormone blocking and hormone replacement has on prepubescent and pubescent children. Many of the effects are irreversible." Another listener reacting to something that you said earlier said, "The guest confirms puberty blockers are experimental in adolescents."

I guess the question then, in the context of your story about Attorney General Bondi doing potential criminal investigations of doctors in this respect, comes down to what's the role of the government in determining these things to be "mutilation," as opposed to the complex decisions that parents and these teenagers and their doctors have to make? This is not a simple decision for anybody. The party that says it's the party of parental rights wants to get the government involved in saying, "No, you may not do this," and labeling it mutilation. There's some other ideological or religious or something agenda at work, apparently.

What would they say if you got to ask anybody, or your colleagues did, about, yes, these are complicated decisions with potential risks and potential benefits, why not leave it to the parents who are presumably acting in good faith with respect to their children and their doctors and what the children are asking for themselves, these 14-plus year olds usually?

Casey Parks: Just to address the reader or listener text really quickly, I wasn't saying puberty blockers are experimental. They've been used since the '80s, so they're not experimental. I meant studies. Studies are, by nature, experimental. The other person is right. Some of these medications are irreversible. If you take testosterone, your voice will lower permanently. You may grow facial hair that you could have taken out through electrolysis. Some of them do have irreversible impacts, and doctors talk about those. I would say, especially state leaders have been more vocal about the government's role.

Andrew Bailey in Missouri, Ken Paxton in Texas, they have repeatedly said the government has a responsibility to protect parents from faulty medicine. They would say the government often intervenes. One example is car seats. Parental rights don't matter with car seats. You have to have a car seat, whether you want one or not. The first clinic of this nature opened in 2007, so doctors do have some experience with this population, but there haven't been enough studies because this care hasn't been around for longer than 20 years on trans adolescents in any meaningful number in the United States.

Most of the studies that United States doctors have depended on come out of the Netherlands. I will tell you, all the doctors I've talked to, they want to do that research. They want studies, but it's always been hard to get money to do these studies to see what are the long-term impacts on adolescents who start these medications. It's even harder now because Trump has canceled most of those grants. I'm not really sure how we'll get that research. There have been places, such as in Florida, where they were saying, "We have to ban this because we don't have enough research."

There were addendums put up where they were like, "Let's make people who do this have to enroll in medical studies so that you can continue to get this care, but only if we can follow you for 20 years and see what happens to you." In most states, Republicans have voted those provisions down, and they've just basically said, "No, we don't want research, we just want to ban it." Yes, we're just stuck in this place right now where we need more research, but there's no way to get it.

Brian Lehrer: Casey Parks, Washington Post reporter covering LGBTQ issues for the paper, including now her story on subpoenas to doctors and medical institutions performing what is generally called gender-affirming care in places where it has been legal, subpoenas asking all kinds of privacy information about the doctors and the patients. Thank you very much for sharing your reporting with us.

Casey Parks: Thanks for having me.

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