238. Venue Engineering in the Efforts to Limit Gender-Affirming Medical Care for Minors

After losses in courts across the country, the Trump administration has successfully steered litigation over gender-affirming medical care for minors to a single judge in a single Texas district court

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Given the paucity of news out of the Supreme Court last week, I’m devoting today’s newsletter to an ongoing and increasingly messy litigation battle between the Trump administration and hospitals providing gender-affirming care to transgender minors, and the related litigation between the Federal Trade Commission (FTC) and the World Professional Association for Transgender Health (WPATH)—the professional body whose Standards of Care shape how gender dysphoria is treated worldwide.

This litigation did not arise in a vacuum. Rather, it’s the latest development across nearly eighteen months in which the Trump administration has made ending gender-affirming care an explicit policy goal and directed federal agencies to investigate the doctors and organizations that (legally) provide or support it. But the Trump administration’s animus and shady litigation behavior does not make every criticism WPATH has faced baseless, nor does it resolve the underlying, genuinely contested questions about the evidence behind WPATH’s guidelines. The goal of today’s post is thus to provide enough of a background on what’s going on in these cases for folks to (hopefully) reach their own conclusions. And before diving in, let me express my thanks and appreciation to one of my superstar research assistants, Abby Liman, for truly superlative assistance with this post.

Background

WPATH is a nonprofit professional association that has, for more than fifty years, published the “Standards of Care” (SOC) that much of the world’s clinical, insurance, and legal infrastructure treats as the authoritative guide to treating gender dysphoria. On the other side are the Justice Department the FTC—a federal agency tasked, among other things, with certain consumer protection responsibilities, which has been investigating WPATH and peer organizations, including the American Academy of Pediatrics and the Endocrine Society, over their public statements on gender-affirming care for minors.

Back in 2022, WPATH had published the eighth edition of its Standards of Care and, in doing so, dropped the specific age limits that prior editions had attached to hormones and certain surgeries. That editorial decision—and internal documents about how it was made—has become the centerpiece of the criticism against the organization. But it also became fodder for the Trump administration, which has made hostility to gender-affirming care—and to transgender rights more broadly—an explicit policy priority. On January 20, 2025, the President issued an executive order announcing that the federal government would recognize only two sexes and enforce “all sex-protective laws” accordingly; eight days later, a second order, “Protecting Children from Chemical and Surgical Mutilation,” declared it federal policy not to “fund, sponsor, promote, assist, or support” the “transition” of minors and to “rigorously enforce all laws” limiting such care.

Those orders set the tone, and the enforcement agencies followed. In April 2025, Attorney General Pam Bondi issued a memorandum accusing clinicians of deploying “junk science” to justify “maiming and sterilizing children” and directing DOJ components to investigate providers; a June 2025 Civil Division memo made those investigations a stated priority, and DOJ’s own press release announcing the first wave of subpoenas quoted Bondi vowing that “medical professionals and organizations that mutilated children in the service of a warped ideology will be held accountable.”

That context matters for two reasons. First, it is the evidentiary backbone of the retaliation and improper-purpose findings that courts would repeatedly make about those subpoenas: judges did not infer animus from thin air but from the administration’s own words—including a DOJ lawyer’s concession in one hearing that “the executive branch wants to reduce or eliminate gender-related care to minors,” and FTC Chairman Andrew Ferguson’s memorandum promising to “fight back against the trans agenda” by investigating “the doctors, therapists, hospitals, and others who deceptively pushed” such care. Second, it is precisely what makes the two sides’ conduct so hard to sort: an administration that has openly announced its goal of ending a category of medical care, and then deploys investigative tools against the providers and professional bodies that support it, invites the suspicion that any given enforcement action is pretextual—even in the instances where the underlying legal theory might otherwise stand on its own.

One last note before seguing to the nationwide litigation: I’ve seen the FTC/WPATH imbroglio described elsewhere as “multidistrict litigation,” but it is not an MDL in the technical sense of a single consolidated proceeding under 28 U.S.C. § 1407. Instead, what’s happening is a campaign playing out across multiple districts at once. The geographic sprawl is not an accident, and is itself one of the central features (and, to my mind, problems) of the underlying dispute.

The Trump Administration and the Nationwide Losses It Incurred

The litigation kerfuffle began in July 2025, when the Department of Justice issued more than twenty administrative subpoenas to hospitals providing gender-affirming care, demanding the identities and medical records of minor patients. Those efforts met with near-uniform objections from district courts across the country, most finding they had been issued for an improper purpose.

Judge Chun in the Western District of Washington set aside the subpoena to Seattle Children’s Hospital, citing the government’s “threadbare justification” and “strong evidence” of improper purpose. Days later, Judge Joun in the District of Massachusetts quashed the subpoena to Boston Children’s Hospital, pointing to the administration's own executive orders and memoranda as evidence of its objective. Judge Whitehead, also in the Western District of Washington, quashed a subpoena in the QueerDoc matter, concluding that the government “issued the subpoena first and searched for a justification second.” Judge Kearney in the Eastern District of Pennsylvania quashed a demand for children’s medical and psychological records, finding the link between patient identities and any fraud theory “tenuous at best.” Judge Bissoon in the Western District of Pennsylvania granted a motion to quash in the UPMC matter, writing that the government’s demand carried “more than a whiff of ill intent.” Magistrate Judge Chung in the District of Colorado recommended that a subpoena to Children’s Hospital of Colorado be held unenforceable as a “smokescreen,” expressly “join[ing] the chorus” of courts before him. And Judge Rubin in the District of Maryland quashed the subpoena to Children’s National Hospital as “a pretext to fulfill the Executive’s well-publicized policy objective.”

The District of Columbia litigation belongs in the same story but occupies a distinct branch of it. Where the seven quashals concerned the DOJ’s administrative subpoenas, the D.C. cases challenged a different instrument—the FTC’s civil investigative demands (CID)—and three organizations brought parallel suits there: the Endocrine Society, the American Academy of Pediatrics, and WPATH. The doctrinal frame also differed: rather than resting on the “improper purpose” standard that governs subpoena enforcement, Chief Judge Boasberg analyzed the CIDs as likely First Amendment retaliation, granting a preliminary injunction in the Endocrine Society case on May 7 and, the same day, enjoining the WPATH CID by relying on that companion opinion. Yet the two branches were expressly linked: Boasberg grounded his reasoning for enjoining the CIDs in the rulings by a “slew of courts” that had already characterized the DOJ’s subpoenas as a "smokescreen" for pressuring providers to abandon gender-affirming care, citing the Colorado and Western District of Washington decisions among them. The connection ran the other way too—the Rhode Island Child Advocate, in turn, leaned on the same cross-district consensus in its own motion to quash. What ultimately set the D.C. cases apart was how they ended: not in a merits ruling but in the FTC's withdrawal of the CIDs on the day it filed a new lawsuit in Texas, which mooted the preliminary-injunction motions in D.C.

Shopping for Chief Judge O’Connor

Indeed, it was only after this unbroken run of losses that the government turned to the Northern District of Texas—and the Fort Worth division, specifically, without ever actually explaining why that’s where this nationwide investigation has been centered. (Although Fort Worth is not technically a “single-judge division,” the two judges who hear 90% of the civil cases filed there—Reed O’Connor and Mark Pittman—are both … pretty far to the right end of the ideological spectrum, at least as federal judges go.)

To remind folks, O’Connor, a George W. Bush appointee who became chief judge in 2025, has for years been one of the go-to judges for conservative litigants, a reputation built in part on the outsized power of one-judge divisions where a plaintiff can effectively choose its jurist (including the Wichita Falls division in which O’Connor hears 100% of new civil cases). He has authored some of the highest-profile district-court rulings of the last decade—striking down the Affordable Care Act and portions of the Indian Child Welfare Act among them—and has himself publicly defended the existence of single-judge divisions (and the judge-shopping it invites), blasting the judiciary’s leadership for “caving to political pressure” when it moved to curb the practice. (I published a response to O’Connor’s speech here.)

Importantly, it’s not quite accurate to refer to what the government is doing in Fort Worth as “judge-shopping” (since Fort Worth isn’t a single-judge division). But once one of these cases was assigned to O’Connor, the federal government appears to be have been relying on the claim that all of these other disputes are “related” to produce the same result—having O’Connor handle all of the nationwide litigation relating to the Trump administration’s investigations of gender-affirming care for minors.

The conduct that has drawn the sharpest “exceeded his power” criticism is not the handling of the WPATH litigation (which we’ll come back to in a moment), but a companion episode: the DOJ’s subpoena to Rhode Island Hospital, which kicked off the latest maneuvering in Fort Worth. On April 30, 2026, DOJ filed a petition to enforce its administrative subpoena against Rhode Island Hospital, demanding five years of records on every minor who received gender-affirming care—including patient names, Social Security numbers, diagnoses, and family details, and asserting that its investigation was “being carried out in the Northern District of Texas.” Chief Judge O’Connor granted the motion to compel that same day, without opposition and without notice to the hospital, ordering production within fourteen days. After the District of Rhode Island separately quashed the subpoena, O’Connor on May 18 ordered the hospital to turn over all responsive records to his court for in camera “safekeeping” pending appeal, accusing it of trying to “circumvent the authority of this Court and the Fifth Circuit”; the hospital’s appeal and emergency-stay request to the Fifth Circuit were denied.

O’Connor pressed ahead anyway, and—most controversially—barred the hospital from seeking further relief in any court other than his own, the Fifth Circuit, or the Supreme Court. In effect, O’Connor issued an injunction aimed not at the executive branch or the plaintiffs, but at another federal court, a maneuver for which, as one commentator put it, “[n]either the Constitution nor any statute comes close to awarding O’Connor, or any other judge, this power.”

At the same time, enforcing an administrative subpoena is a bread-and-butter judicial function, and O’Connor grounded his order in a finding that the government was “engaged in a legitimate investigation” acting “pursuant to its statutory authority.” He also ordered the records produced to the court itself, to be held privately, rather than handed straight to the government—a protective measure, not a wholesale disclosure (which is why the First Circuit ultimately refused to intervene in the Rhode Island case).

The Fort Worth venue engineering is not a one-off, which is part of why it has drawn such scrutiny. Beyond the Rhode Island case, DOJ began issuing grand-jury subpoenas out of the Northern District of Texas to reach other hospitals thousands of miles away—Stanford’s Packard Children’s in California and NYU Langone in New York—even though nothing about those investigations was local to Texas. Judges in both places said so bluntly. Judge Pitts in the Northern District of California found that the government had “issued its grand jury subpoena to avoid another loss and force Packard and its patients to pursue any challenge . . . in a forum that DOJ deems friendlier,” and that DOJ “cannot reasonably invoke comity and the separation of powers as cover for its forum shopping”; Judge Failla in the Southern District of New York likewise granted emergency relief to a class of minor patients. As she put it in ruling from the bench, “[t]he subpoena, expressly targeting members of a particular and uniquely vulnerable group, both shocks the conscience and rises to the level of the most egregious official conduct.”

Perhaps because of the wall of resistance it met in trying to enforce these subpoenas, the government finally resorted to another tack on June 17—when the FTC and four states filed a standalone lawsuit against WPATH and, the same day, withdrew the D.C. CIDs. The FTC then moved for a TRO and preliminary injunction asking O’Connor to bar WPATH from seeking relief in any court other than the Northern District of Texas, the Fifth Circuit, or the Supreme Court. That gambit produced the one moment of restraint: on July 3, after WPATH sought emergency relief in D.C., O’Connor issued a docket order stating that, “[a]fter consultation with Chief Judge Boasberg (D.D.C.),” he would defer ruling on the TRO to permit “orderly consideration” of the parallel injunction requests—a de-escalation that, as one observer noted, O’Connor had conspicuously declined to extend to the Rhode Island Hospital dispute.

Meanwhile, just last Friday, Chief Judge Boasberg rejected WPATH’s attempt to use its D.C. injunction to freeze the FTC’s new Texas enforcement suit, explaining that his May order “did not protect WPATH from complying with all information-seeking processes—only the CID that the Court held was likely retaliatory,” and that his role was not “to prejudge every permutation of the FTC’s future actions as unconstitutionally retaliatory.” Alas, it’s hard to disagree with Boasberg’s conclusion; once the FTC pulled the CIDs and refiled its theory as a standalone lawsuit in Texas, the D.C. injunction had little left to bite on, since it had enjoined a specific administrative demand that no longer existed—not all enforcement action by the FTC writ large.

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Stepping back from the details, the upshot is that, for more than a year, district judges across the country reached a remarkable, largely unprompted consensus that these subpoenas were pretextual—a form of horizontal dialogue that lent the judiciary’s conclusions real institutional weight. But venue engineering of the kind on display in the Rhode Island and grand-jury episodes threatens to override that consensus altogether: if a single, reliably sympathetic forum can absorb every dispute and insulate the government’s preferred outcome from the accumulated judgment of a dozen other courts, that horizontal consensus becomes largely irrelevant to how these cases actually resolve. (Folks might recall that these were some of the loudest arguments against “nationwide injunctions,” arguments the Supreme Court endorsed last June, at least in that specific context, in CASA.) That’s not to say that the end result of all of this procedural maneuvering by the federal government is inconsistent with the rules as they currently stand; my own view is that it isn’t. But the above account seems like a pretty strong argument for why it should be.

The mischief caused by this kind of venue engineering is compounded by the fact that the FTC itself no longer operates with the independence from the White House it once had, following the Supreme Court’s Slaughter decision—raising the prospect that agency enforcement actions like the WPATH suit become a recurring tool rather than an isolated episode, and that the ability to judge- and forum-shop will only increase the politicization and ideological extremism of these disputes.

Three Takeaways

All of this leads me to what I see as three takeaways from what’s going on in these cases—one about the executive branch; one about the underlying merits; and one about the courts.

First, the combination of FTC forum-shopping and direct political control is a troubling one. Indeed, there are serious questions about the government’s litigation conduct in these cases, to say nothing of the FTC’s attempt to assert enforcement authority over noncommercial speech by a nonprofit like WPATH. The specter of the government playing “heads we win, tails you lose” by withdrawing the CIDs only after it filed its deceptive practices lawsuit in a cherry-picked forum is not an especially becoming one, regardless of where one comes down on the merits. Not that long ago, we could’ve taken some solace from the fact that government lawyers could generally be trusted to turn square corners. But for better or worse, the combination of the Trump administration’s behavior and the direct control over the FTC the President now enjoys thanks to Slaughter ratchet up the appearance—if not the reality—of some truly sketchy behavior by the executive branch.

Second, and militating at least a little bit in the other direction, the government has gone to great lengths to suggest that concerns about WPATH’s Standards of Care are more than frivolous. The UK’s Cass Review—commissioned by the National Health Service, not by U.S. culture warriors, albeit still deeply contested—found that WPATH’s SOC8 was a low-quality clinical guideline (and that most international guidelines trace back to WPATH or the Endocrine Society, rather than independently support it). Similarly, several European health systems have restricted these procedures on evidentiary grounds. WPATH’s First Amendment objections to the FTC’s investigation may have been vindicated by Chief Judge Boasberg in the D.C. litigation, but its science remains at least somewhat under challenge.

That said, even reasonable evidentiary disagreement (if that’s what this is) is not the same as fraud, and the picture here strikes me as, at best, contested rather than settled: WPATH has argued with more than a little force that the Cass Review is itself an “outlier,” and that a draft German guideline developed with Austria and Switzerland—under review by 27 professional societies—broadly aligns with SOC8 and does not restrict puberty blockers. The Cass Review has also been subject to its own significant academic criticisms. And even for those who find the Cass Review and arguments based upon it more persuasive than I do, “the evidence is somewhat weaker than you said” is a very different accusation against WPATH than “you knowingly deceived consumers for profit,” which, contra the FTC’s allegations, this ain’t.

More fundamentally, WPATH’s core legal position—that a nonprofit professional association’s clinical guidance and advocacy are protected speech, and that a consumer-protection agency should not be policing a live scientific debate—is not a dodge. It is a serious First Amendment argument that a serious judge (Boasberg) found likely to prevail. WPATH’s stated defense that it “supports individualized patient care, not a ‘one size fits all’ approach,” and that its guidelines rest on “established scientific standards, expert consensus, and patient-centered values,” is a legitimate framing of what guidelines are supposed to do—offer clinical judgment, not consumer advertising. And the associational-privacy stakes of the FTC’s original records demand—compelled disclosure of members’ internal communications—are precisely the kind of intrusion the First Amendment has long guarded against, which is why the chilling effect Chief Judge Boasberg credited should worry even those who distrust WPATH’s science.

Third, and finally, one of the real problems created by forum- and judge-shopping is the concern that these kinds of questions are being steered to the judges most likely to answer them in a particular way, and not necessarily in a way that reflects the median viewpoint of neutral Article III jurists. I’ve long suggested that one of the most important ways to curb the most extreme forms of judge- and forum-shopping is for Congress to provide clearer guidance on where these kinds of lawsuits can be brought—and, indeed, to require some degree of randomness in cases with true nationwide implications.

To date, most of the focus of that conversation has been on suits against the government, but especially after Slaughter, it seems increasingly clear that government-initiated suits can also raise the same suite of concerns. After all, if the Trump administration can run nationwide administrative enforcement proceedings through a single division in the Northern District of Texas, then a future Democratic administration could do the same through the Northern District of California, or the District of Massachusetts, or … you get the point.

I don’t imagine I’m going to persuade anyone about who’s right on the science, medicine, or policy here. Indeed, I’m not entirely sure myself. But if nothing else, perhaps folks can (finally?) be persuaded that this kind of strategic litigation behavior makes it harder to have faith that the best answer is “the courts.”

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