How Texas Became The Right’s Anti-trans Legal Laboratory

In November 2023, Texas Attorney General Ken Paxton garnered national attention by issuing civil investigative demands, or CIDs, to out-of-state health care providers that offered gender-affirming care to transgender youth from Texas. The demands specifically targeted Seattle Children’s Hospital and QueerMed, a telehealth provider in Atlanta, requesting sensitive medical records of Texas minors.

The justification for these demands was rooted in alleged violations of the Texas Deceptive Trade Practices Act, or DTPA, with claims that providers had engaged in “misrepresentations regarding gender transitioning and reassignment treatments.” Critics, however, contend that Paxton’s actions form part of a broader, politically driven effort to discourage families from pursuing gender-affirming care outside Texas. This development follows the state’s enactment of increasingly restrictive laws on gender-affirming care for minors, sparking concerns about the wider consequences of restricting interstate access to such care.

“We are already seeing clinics close down or stop serving minors. This leaves children and their families without the expert medical care they need. We are already seeing families plan to leave their home states. Unfortunately, not all families have the means to do so, nor should they have to,” Heather Walter-McCabe, an associate professor at Saint Louis University School of Law, told The New Republic.

While these demands have serious implications for trans youth in the Lone Star State, they likely signal something broader and more sinister—an early look at what legal strategies, which have come to be a mainstay in Texas, might serve as a model for federal-level actions aimed at targeting providers of gender-affirming care nationwide in the next Trump administration.

“There is tremendous risk to transgender rights at this moment, at both the state and the federal level. I expect we will see many aspects of what has, to date, been a state-by-state attack on transgender rights migrating to the federal level,” Katie Eyer, a law professor at Rutgers University, told TNR. “Many transgender people are worried about their privacy and about the possibility of government targeting and surveillance if this transpires.”

Seattle Children’s Hospital swiftly responded to Paxton’s civil investigative demands, challenging the CIDs on the grounds that Texas had no jurisdiction over its operations. The hospital, based in Washington, neither operates in Texas nor employs Texas-based staff that provide gender-affirming care. Moreover, Seattle Children’s argued that complying with the demands would violate federal privacy laws, including the Health Insurance Portability and Accountability Act, or HIPAA, as well as Washington state’s privacy protections.

Legal scholars say that the Texas DTPA, which Paxton used to support his investigations, is traditionally a consumer protection law aimed at preventing deceptive business practices, which has been repurposed to target providers of gender-affirming care. Many see this as an ideological move, politicizing retrofitted consumer protection laws to serve a broader and more ideological agenda well beyond the original intent of the law.

“I think the actions by the Texas [attorney general] test the extremes by weaponizing information shared in good faith for the genuine purpose of seeking and providing the best quality health care. Not only does this appear to include billing codes, generally a somewhat value-neutral form of information, it also appears to include the very gender markers that trans patients select for their health records,” Elana Redfield, the federal policy director at the Williams Institute, told TNR. “In other words, the [attorney general] is not just targeting providers, he is alleging that even listing your correct gender identity is a form of fraud if it is not what was assigned to you at birth. This goes beyond investigating violations of the care ban. This is an attempt to characterize being transgender itself as fraudulent and illegal.”

Seattle Children’s emphasized in court documents that, because it does not advertise in Texas and does not accept Texas Medicaid reimbursements, it should not be under the jurisdiction of the DTPA. Additionally, the hospital argued that it follows best practices for gender-affirming care as outlined by major medical organizations and that Paxton’s maneuver was an attempt to use legal instruments to stigmatize and restrict access to gender-affirming care for transgender youth.

“Even if the Demands did constitute a legitimate investigation (and they do not), the requests are overly broad because they are not ‘specific and limited in scope to the extent reasonably practicable in light of the purpose for which the information is sought,’” Seattle Children’s said in a court document. Instead, Seattle Children’s asserted that the demands were “an improper attempt by the Attorney General to investigate and enforce recently-enacted SB 14 against Seattle Children’s,” referring to the Texas law that banned gender-affirming care for minors.

The Texas CIDs raised the potential for health records to be weaponized as political tools. “The idea motivating all of these attacks [is] that gender-affirming care is a fundamentally dangerous and unjustified treatment. If a legislature or court agrees, none of what we think of as private health data applies,” Dana Purvis, professor of law at Temple University, told TNR.

At the heart of the dispute is the issue of privacy, specifically how anti-trans actors can exploit gaps in existing federal privacy protections. For instance, Seattle Children’s argued in court documents that Texas’s request for medical records violated HIPAA, a law designed to safeguard sensitive health information. However, the HIPAA Privacy Rule only sets a baseline for protecting health data, but it applies narrowly, covering only specific entities such as health care providers, insurers, and business associates. This leaves significant gaps, as it allows these entities to share protected health information, or PHI, for purposes such as treatment, payment, and health care operations with minimal restrictions. Moreover, HIPAA includes broad exceptions for public policy reasons, allowing disclosures for law enforcement, public health, and oversight activities.

In states like Texas, where laws ban care for trans youth, authorities have used these exceptions to request private health care information, claiming it is necessary to enforce such laws, as Redfield explained to The New Republic.

“HIPAA protects health care data in a variety of ways, but it has exceptions, and there is a particularly relevant one, for the purposes of law enforcement,” Redfield said. “And while there are substantial objections that providers could make, in some cases we are seeing them turning over the data as requested.”

Moreover, state prescription drug monitoring programs, or PDMPs, exploit these HIPAA exceptions, Jennifer Oliva, professor of law and Val Nolan Faculty Fellow at the Maurer School of Law, told TNR. PDMPs are surveillance tools that track prescriptions, including controlled substances such as testosterone, commonly used in gender-affirming care. States often mandate data sharing with law enforcement and other states, bypassing HIPAA protections once data is in the PDMP. This enables potential misuse, as states like Texas reclassify drugs or leverage PDMP data to enforce restrictions on gender-affirming care.

“The news reports make it clear that all of the patient prescribing targeted by Texas involved the prescription of Schedule III testosterone,” Oliva said. “One can believe that Texas is almost exclusively focused on female-to-male transition, but it’s much more likely the case that Texas is focused exclusively on testosterone under current law simply because [it] has easy and ready access to that information in its PDMP.”

Critically, most PDMP agencies are not even covered entities under HIPAA, Oliva emphasized. This means that once data enters a PDMP, it is regulated only by state law, not federal privacy standards.

“Simply stated, the health data of transgender youth are poorly protected under current federal and state law, and things are likely to get even worse as states begin to use their PDMPs to collect and surveil female hormone prescribing information,” Oliva said.

Additionally, while this conflict arose in the context of Washington’s 2023 shield law, which was enacted to protect state providers from civil and criminal actions initiated by states that restrict or criminalize reproductive and gender-affirming care, the full legal strength of this law has yet to be tested in the courts. In its petition, Seattle Children’s asserted that “the information sought may not be disclosed pursuant to the [law enforcement] exception because it is prohibited by Washington’s Shield Law.” However, the case ultimately saw Seattle Children’s agree to withdraw its Texas business license in exchange for the dismissal of the CID.

Legal scholars say that Texas’s actions are part of a much larger legal and political effort to extend state-level bans on gender-affirming care beyond their borders.

“Texas has been a pioneer in techniques to attack transgender health care, so I have no doubt that Paxton’s demands will be reproduced across the country. I also expect the Trump administration to support Paxton’s efforts at the federal level,” Purvis said. This tactic could have far-reaching consequences for families of transgender children, particularly those in states where such care is restricted or banned.

“In 26 states, laws have been passed restricting the ability of providers to provide medical care that is considered a best practice. That alone is enough to intimidate providers or chill the ability to get care. In some of those states, the laws create civil liability for providers even decades in the future—I think it is reasonable to expect that could seriously deter providers as well,” Redfield said. “This is all despite the fact that the evidence and best practices support providing access to the care—and one might argue, even the Hippocratic oath”—the famous oath of ethics that states the obligations and proper conduct of doctors and includes the promise to not cause harm.

Because gender-affirming care has been shown to significantly reduce the risk of suicide, depression, and other mental health challenges among transgender youth, some advocates assert that it is imperative that doctors provide needed care to transgender patients despite anti-trans laws. Yet, the fear that health care providers could face legal repercussions may discourage them from offering these services, thus limiting health care access for transgender youth and their families.

“There is no question that the goal of these statutes and law enforcement actions is to get health care providers to stop providing gender-affirming care. And I want to be explicit that the threats are both legal and illegal—the threat of prosecution from active and motivated [anti-trans] state officials is a very real one, but every headline with leaked and usually inaccurate descriptions of what a clinic or hospital or doctor offers generates a flood of threats of violence,” Purvis said. “So this isn’t just intrusive requests for records that might be used in state proceedings, it’s very real risks of violence against health care providers.”

A newly reelected Trump administration is poised to take a more aggressive stance on regulating health care for transgender youth, signaling a nationwide shift in how gender-affirming care is treated.

“The ultimate goal of these attacks is to have transgender people disappear from public life,” said Allison Chapman, a transgender legislative researcher. “Attacking the basic right to privacy would help create those conditions. So I think it’s absolutely possible this will be a continual issue and we’ll continue to see regulations and legislation to make this happen.”

Trump will likely enact a federal gender-affirming care ban for minors, and may use legal strategies similar to those employed by Texas to serve as a template for his likely pick for attorney general, Pam Bondi. Bondi, a longtime opponent of LGBTQ rights, has supported anti-transgender policies at the state level, and her leadership at the Department of Justice could lead to increased scrutiny of gender-affirming care providers nationwide.

Legal experts note that a Trump-led DOJ may refuse to defend federal protections for transgender rights, as it has done in the past.

“Pam Bondi has a history of support for anti-transgender legislation and administrative action at the state level. Given the Trump administration’s interpretations of Section 1557 of the [Affordable Care Act], declining to include gender identity as a protected class, I do not expect that the administration will change its stance this time,” Walter-McCabe said.

The DOJ could also encourage states to increase surveillance of gender-affirming care through tools like PDMPs, Oliva explained. This could create a chilling effect on health care providers, exacerbating their fears of legal or professional repercussions for offering essential care to transgender youth. In fact, states like Texas could exploit the PDMP system to track gender-affirming care prescriptions and share this data with other states and law enforcement. “I would be unsurprised if the Trump DOJ begins to provide incentive funding to states to enhance their surveillance of gender-affirming care prescription drugs,” Oliva said.

However, there are steps that sanctuary states can take to make trans people safer. Because private health care information shared to a state’s PDMP database is no longer protected by HIPAA but regulated by state law, advocates stress that gender-affirming care sanctuary states should stop sharing prescription data related to hormone therapy with states that criminalize it. Such measures would limit the ability of anti-trans states to track, monitor, and potentially punish families seeking care for their children across state lines. “One thing that legislatures need to do now is remove themselves from the PDMP system and … not share who has been prescribed hormones, including testosterone, with other states,” said Chapman.

Advocates also stress that the need for stronger privacy protections at the federal level has never been more urgent. Although Congress is unlikely to pass new data protection laws to protect transgender people under the incoming administration, legal experts agree that state legislators have the power to create stronger shield laws that protect transgender health care.

“Federal lawmakers could and should pass a new statute with stronger and updated data protections, but that prospect is unlikely in the incoming Congress,” Purvis said. “Lawmakers at the state level have much more power to pass the strongest shield laws they can, which I do think can make a big difference unless and until courts strike shield laws down. And if a court strikes a shield law down, I hope that state legislature passes a new shield law in its place. State lawmakers can really be a clear line of defense for health care providers and trans youth.”

While the political climate remains hostile, legal scholars are hopeful that legal protections can be used to protect trans youth now. As Walter-McCabe noted, “I don’t have an illusion that the states wishing to keep transgender people from the standard of care they need will stop trying, but it is my hope that the courts will serve as guardrails.”

However, with the Supreme Court currently considering a case that could further curtail trans rights, transgender advocates say that trans people must continue to fight for their rights even if the courts do not protect them.

“Activists need to continue to get louder and push back harder against the increased attacks,” Chapman said. “Make it clear we will not go back into the closet and be a beacon of hope for those who are in the closet or struggling.”