Judge says Children’s Hospital not in contempt in gender-affirming care case

A Denver judge Tuesday night sided with Children’s Hospital Colorado after attorneys for young transgender patients had sought to hold the hospital in contempt of court.

Following a multiday trial earlier this month, District Court Judge Ericka F.H. Englert ruled that Children’s has complied with all court orders. Patients and their families suing Children’s have accused the hospital of discrimination for suspending gender-affirming care for those under 18 amid waves of federal pressure.

In June, Englert issued an injunction that prohibited Children’s from refusing to provide gender-affirming care to young patients. The injunction followed a Colorado Supreme Court ruling that found sufficient evidence Children’s did discriminate.

Children’s responded to the injunction by changing its “scope of services” statement to reinstate gender-affirming care, which in this instance means prescriptions for things like hormones and puberty-blockers. But patients have not begun receiving prescriptions again. That’s because the hospital’s doctors — who are not employed by Children’s but by the University of Colorado School of Medicine — each refused to resume writing the prescriptions, citing their own fears of federal punishment.

In her ruling Tuesday, Englert wrote that the doctors are not bound by her injunction and that Children’s, which she referred to as CHC, had done what was ordered of it.

“The Court did not order CHC to provide medical gender affirming care,” Englert wrote. “It ordered CHC to stop refusing to provide that treatment, which CHC did.”

The lawsuit, which is still ongoing, turns on fine points of administrative and civil rights law. But debates in the courtroom have often taken on a larger scope, touching on questions of who should bear the risk in standing up to agreed upon injustice.

“The only people bearing the harm of this are children belonging to a minority group facing threats all across the country,” attorney John McHugh, who represents the patients, said this month during opening statements of the contempt trial.

Children’s says it supports gender-affirming care, but it suspended the care for patients under 18 earlier this year, following federal threats of investigation and punishment. The administration of President Donald Trump has said gender-affirming care is not sound medicine and that hospitals providing it to transgender youth could be kicked out of the Medicaid system. That punishment is known as a death sentence for hospitals because it could cause a cascade of actions that force the hospital to close.

But, because Children’s continues to prescribe hormones and puberty-blockers to young patients who are not transgender when medically appropriate, the Colorado Supreme Court said the hospital had likely violated a state antidiscrimination law.

Englert closed the courtroom to the public this month as doctors from Children’s testified during the contempt trial, meaning the public has not been able to hear in detail why the doctors have refused to resume writing prescriptions. But, in testimony cited in Englert’s ruling Tuesday, none of the doctors said they made the decision based on what is medically best for individual patients.

Englert wrote that one doctor testified “that while they thought medical gender-affirming care should resume in a ‘global sense’ including for moral and ethical reasons, they had to make a decision that was best for themselves and their medical career. They could not help anyone if they could not practice medicine.”

She wrote that the doctor was tearful while testifying.

“They understand their decision will cause harm to others and that ‘because of the world we live in,’ they cannot help others,” Englert wrote.

All of the doctors Englert cited, though, said they made the decision not to resume prescriptions on their own, without pressure from the hospital.

Attorneys for the patients argued that Children’s bears responsibility for ensuring its doctors are not discriminating and said the hospital should do more to guarantee the patients can receive prescriptions if medically appropriate. But Englert rejected that argument, saying that it would violate state rules against the “corporate practice of medicine” — i.e., the hospital telling doctors what to do.

Englert wrote that it’s also infeasible to order Children’s to directly hire new doctors who will write the prescriptions, citing logistical issues around insurance and billing.

“CHC is not a licensed medical provider, does not employ the medical providers who provide such care, and is statutorily barred from directing the medical providers’ independent professional judgment concerning the practice of medicine,” Englert wrote.

In a statement Tuesday night, Children’s said it appreciated Englert’s ruling.

“Throughout this process, we have maintained that the hospital reinstated medical gender-affirming care for minors within our scope of services and that we have acted in accordance with our legal obligations,” the hospital wrote in its statement. “We remain focused on complying with the law and serving the patients and families who rely on our care.”

An attorney for the patients did not immediately respond to a request for comment. The case has been granted class-action status, meaning the attorneys represent hundreds of young patients who had been receiving care at the hospital’s clinic for gender-affirming medicine.