After considering arguments made by both sides, San Diego Superior Court Judge Matthew Braner decided Wednesday that there was little risk in continuing the temporary restraining order he issued last week that required Rady Children’s Health to resume all gender-affirming care, except for surgeries, until an upcoming hearing on March 10.
California Attorney General Rob Bonta sued Rady on Jan. 30, asking the courts to force it to resume care on grounds that continuing to provide the service to children was a condition of approving a merger with Children’s Hospital of Orange County.
Rady has argued that resuming gender care puts it at immediate risk should the U.S. Office of Inspector General file notice that access to Medicare and Medicaid participation for Southern California’s largest provider of health care for children will be delayed in 15 days, a worry expressed clearly in briefs filed this week.
Though Rady expressed its concerns that simply receiving such a notice could begin a chain of bureaucratic actions that would take months to unwind, leaving its operations in San Diego and Orange counties without a massive amount of revenue, Judge Braner expressed his opinion that this hypothetical scenario could be addressed in the moment.
“If HHS issues a 15-day notice, then we will have a hearing the day after,” Braner said.
The same applies, he added, to the possibility of the federal government passing new regulations forbidding Medicaid or Medicare from covering gender-affirming care.
“We’ll clear our calendar, and we’ll have a hearing within 24 hours of any notice,” Braner said.
Rady issued a very brief statement after Wednesday’s ruling: “We respect the court’s directives and will abide by them. We are not able to comment further on active litigation at this time.”
The judge further ordered both Rady and the state Attorney General’s Office to work together to get treatment for those patients who need prescriptions for hormone therapy or who need existing therapy adjusted during an ongoing course of treatment.
Jason Strabo, the main attorney representing Rady, said that a declaration by Trump administration Health Secretary Robert F. Kennedy Jr. on Dec. 18 significantly increases the risk of continuing to operate gender services, especially hormone therapy and gender-conforming surgery. Kennedy’s finding that these “sex-rejecting procedures” do not meet the “professionally recognized standards of health care” brings risk that continuing to do so builds a record of noncompliance that could result in sudden notification that loss of federal program participation will arrive quickly.
“Our point is, every day, every act under the context of the Secretary’s notice … every act in violation of that is a potential grounds to be excluded from Medicare and Medicaid coverage,” Strabo said, indicating that continuing to operate gender-affirming programs that provide surgery or medication to minors brings “catastrophic risk.”
The judge was not quite convinced of the timing.
“It’s not as if this government has been reluctant to act precipitously to cut off funding,” Braner said.
But he simply was not convinced, he said, that such a drastic action, one that could shut down an organization that serves 800,000 children, could occur in a heartbeat.
“It is this court’s understanding that it doesn’t happen absent a period of negotiation, it doesn’t happen absent some kind of discussion, absent some kind of notice and warning … in other words, I’m not completely on board with the idea that, tomorrow, you lose Medicaid funding.”
Kathie Moehlig, executive director of Transfamily Support Services, an advocate who has led the charge on the notion that Rady’s action was premature, attended Wednesday’s hearing and said afterward that many will celebrate the continuation of the restraining order.
“Families that have had their care canceled are going to be able to get the care that has already been approved by their health insurance companies,” Moehlig said.
But there were some present Wednesday who were clearly unhappy with the ruling.
Three women wearing white shirts printed with the slogan “#donoharm” said they are against gender-affirming care and side with Secretary Kennedy’s assertions that hormone replacement therapy is not an effective treatment for gender dysphoria, a condition where a person feels significant distress when they do not identify with their biological gender.
MaryAnn Campos, who said she is a registered nurse, was among the three handing out slips of paper printed with a large QR code and the slogan “the case against the gender mutilation of children.”
“If they stopped surgically mutilating children, if they stopped doing all of that, we’d be happy,” Campos said.
Asked what she makes of assertions that kids who do not receive treatment are at a higher risk of severe health outcomes, including suicide, Campos said that she believes other avenues are more appropriate.
“We all pass through the ages of eight to 16; we know what the hormones can do to you,” Campos said. “I mean, they really mess with you when you’re developing through that time. Where are the parents? Are these all from single-parent homes? Are these parents actually sitting down and talking with their children?”
But it has been clear that parents are very involved in this issue. Hundreds turned out to protest Rady’s decision to stop offering gender-affirming surgeries and medication shortly after the shutdown was announced. Many parents said that they researched the issue deeply before giving their child consent to pursue therapy such as puberty-blocking hormones.
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