September 17th is Constitution and Citizenship Day, a federal observance that celebrates the adoption of the U.S. Constitution in 1787. Lambda Legal usually spends it talking about equal protection. This year, we’re getting more specific: medical records.
For over a year, the U.S. Department of Justice has demanded the medical records of transgender young people who received gender-related care at various hospitals across the country. At first, they tried to do this through administrative subpoenas. But court after court found the demands for this intimate and private information to be unlawful. So, DOJ shifted tactics and began to use the power of a grand jury in Fort Worth, Texas to seek the same records that courts said it could not obtain through administrative subpoenas.
In May, a hospital in New York City disclosed that it had received one of these grand jury subpoenas, seeking the identities and private health information of every transgender young person it had provided care for over the past six years. Its demands for information were broad and highly invasive. It sought the names, diagnoses, and all appointment notes for each patient. It also sought their parents’ names too.
The families learned about it only because New York law required the hospital to announce the subpoena publicly. Lambda Legal, the ACLU, and the NYCLU filed a class action lawsuit on behalf of patients who had received gender-affirming medical care while they were minors at New York City hospitals and their families. In July, a federal judge blocked the demand, not just for the families who sued, but for every patient who received gender care in a New York City hospital. The government has appealed, so this is not over. But the injunction remains in place while the case moves forward.
What does a document from 1787 have to do with medical records? More than you’d think.
1. Your records are still yours, even though the hospital keeps them.
The government argues that you already handed your information to your doctor, so you can’t complain now. The Supreme Court has said that only goes so far. Some records contain information that is too detailed, too personal, and too revealing to treat them as being out in the open just because someone else stores them. In this context, the medical records sought are about as revealing as it gets.
2. The government needs a real reason to know your most private facts.
Whether from popular culture or from school, most people know that the Fifth Amendment protects the right not to incriminate yourself. Likewise, people know that the Fourth Amendment prohibits the government from conducting unreasonable searches of personal spaces like your home.
These amendments protect something broader too: our right to privacy. Courts have long held that there is a private sphere the government cannot reach into simply because it wants to. Some information about you is personal enough that the government needs a genuinely good justification before it can demand it, let alone access it, and that reason has to outweigh how invasive it is and what implications it may have for you.
Personal aspects of your life, like your LGBTQ identity or your health information, are about as private as information can get. Losing control over who knows those things isn’t an inconvenience. For a lot of people, it is the whole risk. For example, we know that disclosure of a person’s transgender identity can, unfortunately, expose them to harassment, discrimination, and other harms.
It is because of the sensitive nature of this information and the consequences that may follow its disclosure that such information is protected by our right to privacy.
3. Judges have turned these demands down, again and again.
This wasn’t the first try. Similar demands went to more than twenty hospitals around the country, and virtually every federal court that ruled on a request to limit or invalidate one of the administrative subpoenas DOJ sent threw it out or required that no patient information be disclosed. One judge called the government’s reasoning a smokescreen. Another called it a fishing expedition.
In July, the judge in our New York case found that the families were substantially likely to win on their claims that allowing DOJ to access this deeply personal information would violate their privacy rights and extended that protection to every transgender young person who received care in a New York City hospital whose information might be sought by the government, not only from the grand jury subpoena that was disclosed but also from any other similar demands.
Questions about your rights?
Lambda Legal’s Legal Help Desk is a free and confidential resource for anyone with questions about their rights as an LGBTQ+ person or someone living with HIV. Find us at lambdalegal.org/helpdesk.
Follow Coe v. Blanche at https://lambdalegal.org/case/coe-v-blanche/.