AUSTIN (KXAN) — The Seattle Children’s Hospital filed a lawsuit in Travis County District Court on Dec. 7 against the Texas Office of the Attorney General (OAG), after that agency requested documents related to gender transition policies and any such care provided to Texas children.
However, hospital claims that the OAG lacks jurisdiction to demand such records from the hospital, and that Washington’s “Shield Law” protects it from requests made by states that “restrict or criminalize reproductive and gender-affirming care.”
“The Shield Law prohibits Washington-based entities such as Seattle Children’s from ‘[c]omply[ing] with subpoena, warrant, court order, or other civil or criminal legal process for records, information, facilities, or assistance related to protected health care services that are lawful in the state of Washington,'” the lawsuit stated.
KXAN reached out to the OAG multiple times prior to publication; however, the agency never replied to our requests.
What does the OAG want?
According to copies of the OAG’s requests (included in the hospital’s lawsuit), the OAG sent two demands — a civil investigative demand and a notice of demand for sworn written statement.
The first demand, which has an issue date of Nov. 17, told the hospital that the OAG was investigating “misrepresentations regarding Gender Transitioning and Reassignment Treatments and Procedures and Texas law” that allegedly violated the Texas Deceptive Trade Practices-Consumer Protection Act.
That demand gave the hospital until Dec. 7 to produce documents to the OAG for the agency to identify the following:
All medications prescribed by the hospital to Texas children The number of Texas children treated by the hospital Diagnosis for every medication provided by the hospital to Texas children Texas laboratories that performed lab tests for the hospital prior to prescribing medications Protocol/guidance for treating Texas children diagnosed with gender identity disorder, gender dysphoria or endocrine disorders Protocol/guidance on how to “wean” a Texas child off gender transitioning care The other demand gave the same deadline date for the hospital to answer questions about the above points under oath.
Both demands include a notice that failure to comply could result in a misdemeanor criminal charge that would carry a $5,000 fine or jail confinement of up to a year.
Hospital leaders affirm no Texas ties
While OAG extended its reach across state lines, the hospital has not, according to the hospital’s Chief Medical Operations Officer Dr. Ruth McDonald and two hospital senior directors.
McDonald, in a sworn affidavit, told the court that the hospital does not have property or accounts, nor employees who provide “gender-affirming care” (or administrative services for that care) in Texas or based in Texas.
“Likewise, SCH [Seattle Children’s Hospital] providers have not provided telemedicine services to Texas residents for ‘gender-affirming care’…or ‘Gender Transitioning or Gender Reassignment Procedures and Treatments,'” said McDonald in her affidavit. “Based on a search of records by our revenue cycle department, there is no record that SCH has provided any ‘gender-affirming care’…or ‘Gender Transitioning or Gender Reassignment Procedures and Treatments’…using public money from the State of Texas or with reimbursement from Texas’s Medicaid or Texas’s child health plan programs.”
The affidavit also claims that the hospital “has not marketed or advertised” transition-related medical care in Texas.
The two other affidavits were filed by a senior director responsible for the hospital’s email system and the senior director responsible for the hospital’s electronic health records system. Both swear that all of the servers and devices providing those services are based in Seattle.
Sham requests and overreach of authority
“The Demands should also be set aside because they are not bona fide investigation into violations of the DTPA and therefore are not proper exercise of the Attorney General’s authority,” the lawsuit states. “The Demands are an improper attempt by the Attorney General to investigate and enforce recently-enacted [Texas] SB 14 against Seattle Children’s based on healthcare services that may have been provided by or at Seattle Children’s within the State of Washington.”
The lawsuit cites definitions made in Senate Bill 14 that restricts the law’s scope to Texas:
“Seattle Children’s is not (and cannot be) in violation of SB 14. The Demands are, therefore, an improper and ultra vires attempt to enforce SB 14 beyond the scope of the statute and beyond the authority of the Attorney General,” the lawsuit states. “The Attorney General, through the Demands for documents and information…is improperly attempting to investigate healthcare that did not occur in Texas.”
Along a similar line, the hospital’s attorneys claim that such an investigation violates the U.S. Constitution’s dormant Commerce Clause, which prevents States from enforcing “protectionist” laws that would erode a national marketplace.