By Devan Cole

(CNN) — The Trump administration’s demands for sensitive medical records of transgender minors are facing fresh scrutiny in court as it ramps up its efforts by using a grand jury in Texas to force providers of gender-affirming care to comply.

The initial use of so-called administrative subpoenas to get the information was shut down in case after case over the last year by jurists appointed by presidents from both parties who said the administration is conducting a baseless fishing expedition into gender-affirming care.

In an apparent bid to overcome those roadblocks, prosecutors in Texas, where a sprawling criminal investigation into gender-affirming treatments has sprung up in recent months, are now seeking some of the records through grand jury subpoenas. In doing so, they’re using a tool that’s historically difficult to challenge to get hold of information that observers say is not necessary for the kind of probe being carried out – alarming advocates and minors who receive the treatments, which is not illegal on the federal level but has been heavily restricted in a slew of GOP-led states.

The only federal judge in Fort Worth, where the probe is being carried out, is Reed O’Connor, a George W. Bush appointee whose conservative bona fides have been especially on display in cases over LGBTQ rights.

“This is unusual,” said Abbe Smith, a longtime criminal defense attorney and a professor at Georgetown Law. “I can’t think of an analogous situation.”

Smith said that officials appeared to be using their prosecutorial powers to “coerce people into complying with the Trump administration’s hostility toward trans people.”

Parents of several children who are asking a New York court to block their information from being turned from a hospital said in court papers they’re worried that having their records disclosed could expose them to retaliation by the Trump administration.

“I am afraid about what may result from releasing my child’s identity to an administration that is hostile to the transgender community. I fear that his name may go on a list of transgender people and that he will be investigated simply for receiving medical care,” one parent – identified as Riley Roe – said in their declaration.

President Donald Trump and his administration have made stamping out such care a priority since the earliest days of his second term. When the Justice Department first began issuing more than 20 administrative subpoenas to doctors and clinics last summer, it said its probes were centered around health care fraud and false statements, among other things.

At least two hospitals have said publicly that they’ve received a grand jury subpoena from the US Attorney’s Office in the Northern District of Texas: NYU Langone Hospitals and Stanford University’s Lucile Salter Packard Children’s Hospital, both of which have operated programs to provide such care to young people. In announcing its subpoena in early May, NYU said it was among several that had received one.

The subpoena against NYU sought a slew of detailed records from the past six years related to the gender-affirming treatments provided by the institution. Among them are billing records, insurance claims and diagnostic codes.

It asked the hospital to turn over more sensitive information: documents “sufficient to identify every patient who underwent sex-rejecting procedures” and all the records related to those individuals “from initial consultation to the most recent treatment provided.” It also compelled the hospital to produce records pertaining to authorizations from parents for their minor children to receive such care.

NYU stopped providing gender-affirming care for minors earlier this year after the Trump administration threatened to pull federal funding from the hospital. Other hospitals have also ended their programs in the face of pressure from Washington.

Stanford’s LPCH was also hit with a similar grand jury subpoena on May 6, and the hospital has said that it’s in negotiations over how to comply in a way that would “mitigate potential intrusions on patient privacy,” including by turning over anonymized versions of the records sought by prosecutors.

There are now three major court hearings set over the next few days.

A federal judge in San Jose, California, will hold an emergency hearing on Friday to consider whether he should bar Stanford’s hospital from complying with the subpoena with respect to six patients who brought suit last month.

In Maryland on Tuesday, a judge who has previously rejected the government’s efforts to obtain records from a hospital in Washington, DC, through an administrative subpoena will consider whether to issue a similar nationwide ruling.

And Wednesday, a Manhattan judge will weigh a request from people who received gender-affirming care at hospitals in New York City for a broad ruling that would prevent hospitals around the US from complying with grand jury subpoenas for such sensitive records.

Through court filings and proceedings, the Justice Department has said that, among other things, it’s looking at whether providers have unlawfully pushed off-label use of drugs for cross-sex hormone therapy and to delay puberty in trans minors. Prosecutors are also probing whether possible fraudulent billing practices have occurred where the treatments have been provided.

Speaking to a judge in Rhode Island last month, DOJ attorney Brantley Mayers said that without having records identifying individual patients and their parents, investigators “cannot fully determine the scope of violation, identity patterns of misbranding or fraudulent billing, or assess whether the conduct was undertaken with intent to defraud or mislead.”

CNN has reached out to the Justice Department for comment.

Grand jury subpoenas

Grand jury proceedings are shrouded in secrecy and individuals or entities subjected to subpoenas from prosecutors – who can send them without needing to get pre-approval – do not typically reveal that they’ve been hit with one, though they’re not explicitly barred from making such a disclosure, either.

The target of a grand jury subpoena can attempt to quash it, but courts tend to defer to prosecutors working to gather evidence to bring a criminal case.

However, legal experts said the cases seeking to block compliance with the grand jury subpoenas are likely bolstered by the series of court rulings over the last year swatting down administrative subpoenas for similar information.

“I think this challenge for the current administration is that that presumption (of good faith) has been a little bit eroded by the public comments that have been made about some of the issues that are supposedly under investigation that undercut that presumption of legitimacy,” said Joy Boyd Longnecker, a longtime white collar defense attorney whose practice includes litigating subpoenas.

In their lawsuit brought against the Palo Alto-based hospital last week, the six anonymous individuals said that while they don’t want to impede the work of the ongoing investigation in Texas, requesting sensitive information containing patient names and details about their treatments is a step too far.

“DOJ has repeatedly sought the same category of patient-identifying medical records under shifting legal labels, and courts have repeatedly found that those records bear no adequate connection to DOJ’s asserted (Food, Drug and Cosmetic Act) or fraud theories,” lawyers representing the patients wrote in court papers. “The government cannot cure that mismatch simply by repackaging the same patient-data demands as grand jury process.”

Lawyers for Stanford’s LPCH said in court filings this week it was initially hit with an administrative subpoena last summer, but that it hadn’t yet complied when prosecutors abruptly withdrew it last month and issued the grand jury subpoena.

The hospital said that DOJ has been open to accepting records with detailed redactions, but not if the patients challenging the effort are successful in their case. Securing a win from the California judge, prosecutors told the hospital, would prompt them to ask O’Connor to force the hospital to turn over non-anonymized versions of the records.

“An injunction would … potentially result in the worst-case scenario for the plaintiffs,” the hospital’s lawyers wrote.

Subpoenas with an ‘improper purpose’

Across nearly 10 cases over the last year, federal judges around the country blocked administrative subpoenas for the records. Some of those rulings are now on appeal.

Judges took issue with both the investigators’ need for the information and its desire to get non-anonymized versions of the records, which would have prevented the names of patients and their parents, along with their intimate medical records, from being disclosed even though they themselves don’t appear to be under criminal investigation.

When Judge John Chun, an appointee of former President Joe Biden, blocked an administrative subpoena to Seattle Children’s Hospital in September, he pointed to “threadbare” evidence from the Justice Department for why it needed the health records for what it told him was a probe into a federal healthcare offense. It seemed, he concluded, that the information was being sought “as part of an effort to end gender-related care for minors” through a pressure campaign.

Judge Myong J. Joun in Massachusetts chastised the administration last year for going on an attempted “fishing expedition” when it had not offered “an iota of suspicion” that Boston Children’s Hospital had broken any federal laws.

“It is abundantly clear that the true purpose of issuing the subpoena is to … harass and intimidate BCH to stop providing such care, and to dissuade patients from seeking such care,” the judge wrote.

The situation turned especially ugly last month after a Trump-appointed district judge in Rhode Island accused the Justice Department of acting in bad faith as it sought to keep alive an administrative subpoena issued to Rhode Island Hospital.

The hospital had been in negotiations with the government over how to respond to its demands when the state’s child advocate asked Judge Mary McElroy to step in to quash the subpoena. A few days earlier, officials asked a federal judge in Fort Worth, Texas, to order the hospital to comply with the subpoena even as it was in the middle of talks with the hospital.

At a tense hearing on May 12, the judge ripped into DOJ lawyers for its “misleading” maneuvering in the dispute, as well as its inability to answer key questions about why the department had recently shifted its investigation to Fort Worth, which she described as a “favorable forum” given the fact that the only federal judge there is fiercely conservative.

Underscoring her mistrust with the government, McElroy urged any other hospital or provider in active talks with investigators over how to proceed with a subpoena to file requests to quash the subpoena.

The government, she said, according to a transcript of the proceeding, “should be prepared to field thousands of motions to quash – tens of thousands, maybe, because I don’t know how any party can rely on a conversation with the Department of Justice that they’re working on compliance given the (track) of this case.”

McElroy ultimately voided the administrative subpoena, but a federal appeals court in Boston later said the hospital needed to hand over anonymized versions of the records to O’Connor while appeals play out.

Hovering over all of this are questions about why prosecutors have shifted much of their work to Fort Worth instead of having it conducted in the judicial districts where the hospitals in question are located.

McElroy zeroed in on that issue when she attempted to block the subpoena for the Rhode Island hospital, writing in her decision that DOJ saw his court as being “friendly to its political positions.”

For their part, DOJ lawyers have conceded that while the investigation “is indeed nationwide in scope, the government did not simply decide that it would park the investigation” in Fort Worth so that it could seek orders there for compliance with the subpoenas.

“There are substantial investigative steps happening here,” they wrote in court papers, saying that “several subjects and potential targets of the investigation” are in northern Texas. But the department also stressed in court filings that its probe “is not – and has never been – an investigation of patients or parents” seeking gender-affirming care.

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