DOJ will investigate doctors - trans care to minors

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Attorney General Pam Bondi issued a memo this week seeking to further curtail access to transgender health care for minors. In the memo, Bondi said the Justice Department will use a variety of existing U.S. laws to investigate providers of such care, as well as drug manufacturers and distributors.

She directed U.S. attorneys to use laws against female genital mutilation to investigate doctors who “mutilate” children “under the guise of care” and to prosecute these “offenses to the fullest extent possible.”

“I am putting medical practitioners, hospitals, and clinics on notice: In the United States, it is a felony to perform, attempt to perform, or conspire to perform female genital mutilation (‘FGM’) on any person under the age of 18,” Bondi wrote. “That crime carries a maximum prison sentence of 10 years per count.”

Bondi also directed the Consumer Protection Branch of the DOJ’s Civil Division to investigate potential violations of the Food, Drug and Cosmetic Act by drug manufacturers and distributors who engage "in misbranding by making false claims about the on- or off-label use of puberty blockers, sex hormones, or any other drug used to facilitate” a minor’s gender transition.

And she directed the Civil Division’s Fraud Section to investigate potential violations of the False Claims Act by physicians who submit “false claims … to federal health care programs for any non-covered services related to radical gender experimentation.” (She included as an example of this a physician prescribing puberty blockers to a minor for gender-transition care but reporting it to Medicaid as being for early-onset puberty.)

Robin Maril, an assistant professor of constitutional law at Oregon’s Willamette University, said Bondi’s memo doesn’t change any existing laws. Doctors, she said, will not be breaking the law by continuing to treat trans minors if they live in a state where such care is still legal. She also noted that Medicaid fraud and defrauding the government are already crimes.

“The bulk of this is just showing how they’re going to use resources and investigate,” Maril said. “That’s not a law change. It’s meant to have a chilling effect on physicians providing access to necessary care, fearing that it will be characterized as chemical and surgical mutilation of children.”

She added that the memo’s call on whistleblowers to report “knowledge of any such violations” could further make doctors afraid of being reported.

It’s unclear what type of procedure would be considered female genital mutilation “under the guise of care” according to Bondi’s interpretation of U.S. law. The FBI defines it as “partial or total removal of the external female genitalia or other injuries to the female genital organs for non-medical reasons.”

Transition-related care for minors can encompass a range of treatments, including talk therapy for younger children, puberty-blocking medications for adolescents and hormone therapy for older teens. Bondi’s memo specifically mentions gender-affirming surgeries, which are not recommended for minors. In rare cases, older teens can receive a double mastectomy, or removal of the breasts.

It’s also unclear if Bondi’s directives would conflict with federal and state anti-discrimination laws. A provision in the Affordable Care Act, for example, prohibits physicians who are providing federally funded services from discriminating based on sex. The Biden administration issued a notice interpreting that provision to include protection based on gender identity, but the Trump administration rescinded that notice in February. Some advocates argue the provision’s protections and some state nondiscrimination laws still apply.