New York trans youth temporarily protected from DOJ request for patient list

Last month, the Department of Justice (DOJ) served NYU Langone, Mount Sinai, and a number of other hospitals providing trans healthcare to youth were served with subpoenas to hand over all identifying information on trans kids, their parents, and the doctors that served them, as part of a criminal investigation.

This morning, the judge refused to allow these documents to be handed over, pending future hearings. While this injunction is in place, it effectively blocks the doctors and parents of trans kids from prosecution. There will be a further hearing in two weeks to determine if this will be extended.

Yesterday, the parents of the affected children, NYU Langone, the ACLU, and the New York Civil Liberties Union appeared in court to prevent the handover of these documents. Similar cases were heard earlier this month in Maryland and California, both of which were ruled in favor of the privacy of the trans kids and those around them.

Mount Sinai and other hospitals served with subpoenas were not present.

The parents and hospitals were primarily represented by the ACLU’s Chase Strangio, who frequently argues on behalf of trans rights in court. He was also the first and only open trans person to argue a case before the Supreme Court.

His case, and that of his fellow lawyers, was that the DOJ is acting in bad faith in numerous ways. 

The DOJ filed their subpoenas in the Northern District of Texas, while the medical care in question was in New York. Strangio and his fellow lawyers argued that this was forum shopping, and that the information should not be handed over on this basis.

The DOJ responded that due to the secrecy requirement of the case in Texas, he could not acknowledge the existence of the grand jury in question, or the subpoenas that it had issued. Therefore, they could not respond to the argument without breaking confidentiality. When discussing the grand jury investigation in question, he could only speak in hypotheticals, and could not respond to the actual facts of the case.

This is despite the fact that the grand jury investigation and the subpoenas it issued have been public knowledge for over 6 weeks at this point, having been widely reported on, and were openly discussed in court by the judge and others. The DOJ lawyer was effectively barred by outside legal restrictions from discussing the very facts that this legal case was based on.

The absurdities this caused led the judge to openly mock the DOJ lawyer at several points, to the laughter of the audience.

The secrecy of the criminal investigation against the parties was the subject of constant attacks. NYU was being forced to hand over all medical and personal information relating to trans kids and those around them. Not only is this personally identifying information for everyone involved, it is being done in service of an investigation that might put its hospital staff and the parents of its patients in legal jeopardy.

This secrecy became an issue in light of the fact that medical data on children transitioning is essentially a way to obtain a list of trans kids. As one lawyer noted, asking for medical data on a specific minority group is unprecedented in the recent history of the United States. 

While the DOJ lawyer could not respond to this due to being legally barred from discussing certain facts of the case, he did slip up at one point. While discussing the hypothetical case, he said that “no patients will be prosecuted” as a result of the case (while not acknowledging that the case exists). However, he also said that “these patients are victims”, referring to the trans kids in question. 

If these kids are victims, then it follows that the parents and doctors facilitating this care would be the victimizers, and that they could be prosecuted on this basis. The lawyer’s slip up here seems to imply that this is what the information being requested will be used for.

The lawyer for NYU argued that even if the information provided was partially redacted to remove personally identifying information on the affected parties, it could still be de-anonymized later on. As the judge pointed out, if this information is handed over unredacted or in a way that is de-anonymizable, it is potentially opening up a great number of people to prosecution, including people in the audience. The NYU lawyer said that if required to do so, then “we would be ready to produce some patient data tomorrow”.

However, so long as the protection granted by the judge is maintained, this will be unnecessary. For now, this information will not be handed over.