A federal judge repeatedly criticized the government on Monday as he concluded a U.S. Department of Justice request for patient and employee information from Children’s Hospital Colorado was fueled by an “improper purpose” and should be denied. U.S. Magistrate Judge Cyrus Y. Chung determine d that the government’s stated purpose of investigating possible violations of the Federal Food, Drug, and Cosmetic Act was undermined by administration officials’ repeated statements characterizing the use of puberty blockers and hormone treatments in minors as “mutilation” that needs to be stopped. “Congress has made no law authorizing an investigation of gender-affirming care, let alone one aimed at ending such care. Such an investigation, then, is no faithful execution of any law,” wrote Chung on Jan. 5. “The Executive Branch cannot engage in new lawmaking on its own and, thus, until and unless Congress creates a statute justifying it, a purpose of investigating the legal activity of gender-affirming care — let alone ending it — cannot ground a legitimate investigation.” The government will have 14 days to object to Chung’s recommendation that its subpoena into Children’s Colorado be quashed. Ultimately, U.S. District Court Judge S. Kato Crews, a Joe Biden appointee, will decide whether to uphold or overrule Chung’s conclusion. Over the summer, the Justice Department served a subpoena on Children’s Colorado and other hospital systems. The government requested documents, from January 2020 onward, that identify patients, reveal personnel files and disclose communications with the pharmaceutical industry. The demand was aimed at treatment involving puberty blockers and hormone therapy for children. The Justice Department was focused on gender-related care, which it defined as “any medical, surgical, psychological, or social treatment provided to individuals to alter their physical appearance or social presentation to resemble characteristics typically associated with the opposite biological sex.” The investigation was rooted in multiple executive orders President Donald Trump issued, decrying “efforts to eradicate the biological reality of sex” and seeking to “rigorously enforce all laws” to deter certain treatment for children seeking to delay puberty or identify with a gender that does not correlate to their sex at birth. A federal judge in Maryland subsequently blocked the portions of the orders withholding related grant funding. FILE PHOTO: Two men walk past an entrance to the Byron G. Rogers Federal Building and U.S. Courthouse in Denver. Children’s Colorado quickly sought to quash the subpoena. It argued the request amounted to a “fishing expedition” designed to intimidate patients and providers for conduct that was not illegal under federal or state law. “In meet and confer calls, the DOJ attorneys handling this matter acknowledged that they have no reason to suspect any form of wrongdoing by Children’s Hospital, or any evidence of misconduct by Children’s Hospital or anyone connected with it,” wrote the organization’s lawyers. The Justice Department responded that it was investigating whether “persons in Colorado committed federal health care offenses” while providing care to children. The government repeatedly referenced a concurring opinion from the U.S. Supreme Court’s June decision in United States v. Skrmetti, where the Republican-appointed majority held that states may block certain gender-related treatments for children without violating the U.S. Constitution. Justice Clarence Thomas, writing separately, raised doubts about the drugs involved. The Justice Department, in responding to Children’s Colorado’s motion, likewise referenced “potential consumer-protection violations” that may “deserve exploration.” Chung, who worked for the Justice Department before his appointment to the bench, concluded the subpoena went beyond any potential inquiry under the Federal Food, Drug, and Cosmetic Act. “Rather than limiting its request for patient data to some criteria relevant to an ostensible investigation into misbranded labeling, for instance,” he wrote, the subpoena’s requests “create a dragnet designed to sweep in all patient data related to any prescription of puberty blockers or hormone therapy.” Instead, he believed the subpoena was designed to “gather as much information” as possible about Children’s Colorado staff and patients, with “no insight into the identity of any bad actor or the nature of any scheme that might be afoot.” “It paints a compelling picture illustrating that the government’s aim is not actually to investigate FDCA violations, but to use the FDCA as a smokescreen for its true objective of pressuring pediatric hospitals into ending gender-affirming care through commencing vague, suspicionless ‘investigations,'” he wrote. “Every court to consider the issue agrees.” A federal judge in Massachusetts quashed a similar subpoena in September against Boston Children’s Hospital. Judges in Washington and Pennsylvania have followed suit. The case is In Re: Department of Justice Administrative Subpoena No. 25-1431-030. ...read more read less