Seattle Children’s sues Texas AG over request for gender care records

The story was originally published by the The Seattle Times with support from our 2023 National Fellowship.

A new lawsuit by Seattle Children’s pits the hospital against the Texas Attorney General’s Office, amid a national fight over privacy for children seeking gender-affirming care.

In the lawsuit, filed this month in Travis County District Court in Texas, Seattle Children’s is aiming to protect patient information of Texans who left their home state, where it’s illegal for minors to access gender-affirming care, to seek treatment here, where it is legal.

It also invokes Washington’s new shield law, legislation state lawmakers approved earlier this year to protect hospitals from being forced to share information about transgender and gender-diverse children who are seeking medical care. Many Democrat-led states have passed similar shield laws, fearing that people crossing state lines for abortions and gender-affirming care could be prosecuted as more Republican-led states continue to pass laws restricting access to these services.

Children’s filed the new lawsuit after the office of Texas Attorney General Ken Paxton served the hospital with a civil investigative demand in late November, according to the complaint. The request sought information about patients from Texas who had received gender-affirming care services from Children’s, including details related to diagnoses, medications prescribed, laboratory testing and other treatment protocols.

Paxton’s office also asked for the number of Texas children treated at the hospital and for guidance on how to “wean” a child off gender care.

In the complaint, the Seattle hospital argues Texas authorities don’t have jurisdiction over these Washington patient records and calls the requests a “sham” and “improper.”

“There is no doubt the Attorney General is granted broad investigative powers under Texas law,” the lawsuit says. “But those powers are not unlimited. … Gender-affirming care is legal in Washington.”

According to the lawsuit, Paxton’s office told Children’s it was investigating potential violations of the Texas Deceptive Trade Practices Act, which aims to protect consumers by preventing general misrepresentations of practices. In this case, the Attorney General’s Office said it was looking into misrepresentations related to “gender transitioning and reassignment treatments.”

The November letter also cited Texas law, referring to a statute that took effect in September, prohibiting minors from obtaining gender-affirming medication and surgical interventions.

“Seattle Children’s took legal action to protect private patient information related to gender-affirming care services at our organization sought by the Texas Attorney General,” a hospital spokesperson said in a statement. “Seattle Children’s complies with the law for all health care services provided.”

The hospital Thursday declined to comment further on the litigation, but Children’s attorneys argued in the complaint that the Texas demands represent an “unconstitutional attempt to investigate and chill potential interstate commerce and travel for Texas residents seeking care in another state.”

They also said that if they complied with the data request, they would be violating federal health privacy laws and the Washington shield law. Among other things, the shield law prohibits local cooperation with out-of-state efforts to pursue criminal and civil cases related to reproductive health and gender-affirming care.

The law protects Washington-based businesses or organizations, like Children’s, from having to respond to “any [gender care-related] investigation by a ban state,” or a state that restricts access to gender-affirming care, the complaint says.

The law also prohibits state businesses from complying with subpoenas, warrants and other court orders related to health care that is legal in Washington.

Paxton’s office did not immediately respond to a request for comment.

A spokesperson for state Attorney General Bob Ferguson’s office, which supported passage of the state’s shield law and has been vocal about protecting access to both reproductive health and gender-affirming care, did not comment on the lawsuit except to say their office was aware of it and was “closely monitoring.”

The hospital, which does not provide any gender-affirming care in Texas nor does it advertise gender-affirming services there, asked the court to “set aside” the patient data request — or modify the request and grant the hospital an extension to comply.

Children’s has provided gender-affirming mental, medical and some surgical care out of its gender clinic for more than five years. The state is not publicly tracking the number of out-of-state patients seeking some type of care that remains legal in Washington, but some local gender-affirming care providers have noticed increases in recent months.