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Eric Gay

Texas Attorney General Ken Paxton is using an exception in federal medical-privacy law to demand records from health-care providers far beyond his state’s borders — any hospitals, clinics and practices that may have treated transgender youth from Texas. The aggressive attack on the LGBTQ community is one that legal experts say could pose a threat to medical privacy for all.

Critics accuse Paxton, a hard-right Republican and longtime ally of <a href="https://www.washingtonpost.com/donald-trump/" target="_blank" class="contextual_link">Donald Trump</a>, of overreach in his latest effort. But language in the federal Health Insurance Portability and Accountability Act (HIPAA),<a href="https://www.hhs.gov/hipaa/for-professionals/faq/505/what-does-the-privacy-rule-allow-covered-entities-to-disclose-to-law-enforcement-officials/index.html" target=_blank> permitting disclosure</a> for law enforcement investigations, may allow him to obtain the records sought, as the Tennessee attorney general did last year for transgender patients treated at a hospital in his state.

“Chances are, [Paxton] will be able to access those records,” said Carmel Shachar of Harvard Law School’s Center for Health Law and Policy Innovation, noting that specific HIPAA exception.

He is seeking records just for Texas youths, though the state’s own law restricting gender-affirming care for minors only applies to in-state providers and does not bar families from seeking care elsewhere. Opponents are suing to challenge the ban’s legality and argued their case Tuesday before the Texas Supreme Court.

Paxton’s broader investigation was revealed last month when Seattle Children’s Hospital <a href="https://www.washingtonpost.com/nation/2023/12/21/seattle-children-hospital-texas-gender/?itid=lk_inline_manual_13" target=_blank>sued in Texas</a> to block release of the records that it said Paxton had requested in November, including the number of patients from Texas it had treated for gender dysphoria, diagnoses for every prescription provided them and other specifics. The hospital called his queries “sham requests” and noted that Washington state’s attorney general backed the facility and secured an order from a Washington judge barring the release of those medical records under state law. A ruling in the Texas case is pending.

Last week, the founder of a telehealth clinic in Decatur, Ga., said it also had <a href="https://www.washingtonpost.com/nation/2024/01/29/texas-ag-transgender-records-georgia/" target=_blank>received a request</a> for records but refused to comply.

Julia Robinson

Shachar said Paxton’s strategy is not surprising. Since surviving impeachment by the Texas House last year on public corruption charges, he has emerged as a newly emboldened conservative legal activist, particularly against <a href="https://www.washingtonpost.com/abortion/" target="_blank" class="contextual_link">abortion</a> and LGBTQ rights. “Medicine is just too portable for one state to outlaw something and live and let live with other states allowing it,” she added.

The attorney general’s office has refused to say how many more requests have been sent to out-of-state providers or why. The demand sent to Seattle Children’s said the records were wanted for “an investigation of actual or possible violations” of the Texas Deceptive Trade Practices-Consumer Protection Act related to “misrepresentations regarding gender transitioning and reassignment treatments and procedures.”

The office’s response this week to a public records request by The Washington Post explained that its pursuit of the records is part of a Medicaid fraud probe and cited Texas deceptive trade, antitrust and human trafficking laws. Paxton previously investigated pharmaceutical companies that produce puberty blockers for alleged deceptive trade practices. He also demanded records showing which <a href="https://www.washingtonpost.com/nation/2022/12/14/texas-transgender-data-paxton/?itid=lk_inline_manual_10" target=_blank>drivers changed their gender </a>on their Texas licenses and joined multistate coalitions opposing laws protecting gender-affirming care.

Karen Loewy, senior counsel at Lambda Legal, is challenging the Texas ban on gender-affirming care for minors. She said Thursday that she knows of several providers whom Paxton’s office targeted in Georgia, Washington state and at least one additional state, though she is not aware of any turning over patient records.

Loewy condemned Paxton’s effort as “political theater that is designed to scare Texas families” who leave the state to get the care in question.

“What he’s doing is raising the specter that if families travel, that somehow their privacy is going to be breached,” she said. “There’s no jurisdiction to go after these out-of-state entities or to infringe on the rights of these families who are being forced to travel.”

Mikala Compton 

In Tennessee, Republican Attorney General Jonathan Skrmetti claimed to be investigating medical billing when he asked Vanderbilt University Medical Center for medical records on its transgender patients. The hospital — a regional hub for transgender health care — turned over files for 86 individuals, including names and other identifying information.

The civil rights office of U.S. Health and Human Services is looking into the release. Three Vanderbilt patients have filed a class-action lawsuit against the medical center. A hearing is scheduled Friday, with the hospital’s attorneys insisting they followed the law in disclosing the records and asking that the lawsuit be dismissed.

“What is at stake here is whether patient medical privacy still exists in the United States,” said Tricia Herzfeld, a Nashville attorney representing those patients. “When doctors have to choose between protecting your private medical records and giving in to politically motivated AGs, doctors must protect their patients. If that doesn’t happen, patient privacy as we know it is over. … AGs could use this to go after any number of things — abortion, covid vaccines, birth control, you name it.”

Release of those medical records has traumatized her clients, she said. “They are afraid to get medical care, they fear that the AG will publicly name them, and they are worried for their physical safety.”

A Vanderbilt spokesman said the hospital had not received a records request from the Texas attorney general.

In 2022, Skrmetti joined Paxton and other red-state attorneys general in sending letters to the federal government opposing protections <a href="https://www.tn.gov/attorneygeneral/news/2022/9/12/pr22-34.html" target="_blank">against transgender discrimination</a> and <a href="https://www.tn.gov/attorneygeneral/news/2022/10/12/pr22-40.html" target="_blank">threats on providers of transgender health care</a>. That same year, Paxton issued a legal opinion for Texas that allowed the <a href="https://www.washingtonpost.com/nation/2022/02/23/greg-abbott-gender-affirming-care-child-abuse-directive/?itid=lk_inline_manual_5" target="_blank">state child-welfare agency to investigate</a> parents of transgender children for child abuse and intervened in a lawsuit involving a Dallas clinic that was treating transgender youth. He subsequently investigated clinics providing gender-affirming care in Austin and Houston, claiming in a statement that “‘gender transitioning’ procedures that hurt our children constitute child abuse.”

In 2023, lawmakers cited Paxton’s legal opinion in passing the law that prohibits gender-affirming care for minors.

Stephen Maturen

Ian Pittman, an Austin-based lawyer representing Texas parents of transgender youth, said Paxton appears to be fishing for records he could use to issue another legal opinion and spur state lawmakers to pass laws extending the ban on gender-affirming care.

“Legislators might use [the records] to say we need to keep parents from taking kids out of state to get treatment,” Pittman said. “They need numbers to back it up. Otherwise, why would you prohibit something? It’s the executive branch trying to give information to the legislative branch so they can pass a law.”

Pittman has advised his clients to ask out-of-state providers if they had been contacted by Paxton’s office and, if so, how they responded. So far, none said their providers received a letter. Yet one mother still fears for her daughter’s privacy.

“I have never been so scared for our family and never knew that I would ever feel this way since we live in America,” she said, speaking on the condition of anonymity given the sensitivity of the issue. “This is just terrifying and really taking a toll on our lives.”

A clinic director in Washington state licensed to practice in multiple other states told The Post that they got a records request from Paxton’s office and refused to comply after their attorneys said he had no jurisdiction.

“I’m not going to be an agent of the state,” the director said, speaking on the condition of anonymity because of death threats. They worry about the potential impact of Paxton’s “chilling” inquiry on medical privacy and human rights.

“This does not stop with trans kids. Anyone who’s going to abuse human rights is going to abuse them all,” they said. “It doesn’t stop with the first group that’s attacked. Do you want our government to be able to have that information and put it on a public record?”

Shield laws protecting transgender health-care access have been passed by 14 states, including Washington, as well as D.C., <a href="https://www.lgbtmap.org/equality-maps/healthcare/trans_shield_laws" target=_blank>according to the nonprofit think tank Movement Advancement Project</a>. But many states, including Georgia, have no shield laws, and there is no federal shield law. While the Biden administration has touted a federal rule expanding HIPAA protections last year to protect the medical privacy of those seeking abortions in states where it’s still legal, Health and Human Services has not issued a similar rule protecting those seeking transgender health care out of state. An agency spokeswoman declined to comment Thursday on whether it is considering such a rule.

“They are both issues of patient medical determination over their bodies,” said Shachar, who is an assistant clinical professor of law at Harvard and supports privacy protections for gender-affirming care. “You have a lot of states that are legislating against what the <a href="https://www.ama-assn.org/delivering-care/population-care/what-know-about-gender-affirming-care-younger-patients" target="_blank">medical profession is saying</a> is the standard, and that’s where you’re getting these conflicts of law and privacy.”

2018 APME International Perspective

2015 Overseas Press Club

2013 DART Award

2012 Livingston Finalist

Harvard College, BA Social Studies, 1999

Molly Hennessy-Fiske joined The Post in 2022 as a national reporter based in Texas covering breaking news and red states.

Molly Hennessy-Fiske

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Texas AG’s pursuit of transgender medical records stirs privacy concerns

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Mississippi is one of 16 states that has banned
trans kids from getting hormones. 

For The Washington Post

Rory Doyle

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