Recently, Attorney General Pam Bondi purportedly issued an internal memorandum in response to Executive Order 14187 (“Protecting Children from Chemical and Surgical Mutilation”) concerning the treatment of transgender minors by medical practitioners, hospitals, clinics, and pharmaceutical companies. The memo set forth guidance for all Department of Justice (DOJ) employees to investigate individuals and entities who provide gender-affirming care to minor patients. To be clear, the memorandum—which has been posted in various locations on the internet and widely reported on by various media outlets but has not been verified as authentic by Husch Blackwell—is an internal policy statement directed to DOJ personnel and is not law. While it purports to issue “guidelines” pursuant to an executive order from the President, that executive order is itself under scrutiny (and has been partially enjoined).

The memo contains three main directives that could indicate the potential for future investigations or inquiries of providers:

1. Criminal Investigation and Prosecution. U.S. Attorneys are to investigate suspected cases of what the memo refers to as “FGM [female genital mutilation]—under the banner of so-called ‘gender-affirming care’ or otherwise—and to prosecute all FGM offenses to the fullest extent possible.” The memo notes the Federal Bureau of Investigation (FBI), alongside federal, state, and local partners, will pursue every legitimate lead and that, pursuant to 18 U.S.C. § 116(a)(l), violations of the law in these cases may result in felony charges with a maximum prison sentence of 10 years per count.

• Investigation of Violations of the Food, Drug and Cosmetic Act. The Civil Division’s Consumer Protection Branch is to investigate any violations of the Food, Drug, and Cosmetic Act by pharmaceutical manufacturers and distributors “engaged in misbranding by making false claims about the on- or off-label use of puberty blockers, sex hormones, or any other drug used to facilitate a child’s so-called ‘gender transition.’”

• Investigation of Violations of the False Claims Act (FCA). Finally, the Civil Division’s Fraud Section is to pursue investigations under the FCA for false claims submitted to federal healthcare programs for noncovered services related to “radical gender experimentation.” The memo notes this could include claims that physicians prescribe puberty blockers to children for gender dysphoria but bill as if the drug is prescribed for early onset puberty, or claims that hospitals perform gender-affirming surgical procedures but bill for an entirely different procedure.

The memo goes on to express eagerness to work with qui tam whistleblowers with knowledge of any such violations. It also notes the launch of the “Attorney General’s Coalition Against Child Mutilation” with the idea that either the public or state attorneys general will identify leads, share intelligence, and build cases against hospitals and practitioners violating federal or state laws banning the identified practices and other, related practices.

Finally, and in furtherance of these directives, the Attorney General has instructed the Office of Legislative Affairs (OLA) to draft new legislation which would create a private right of action for children and the parents of children who have received gender-affirming care. She proposes that this legislation “establish a long statute of limitations and retroactive liability.” She also instructs OLA to draft legislation amending 18 U.S.C. § 116 to “enhance protection” under this statue. The memo notes that the Attorney General’s office will work with state level legislators to encourage the passage of similar legislation at the state level.

What this Means for Providers

These directives are a “top priority” for the office, or as AG Bondi tersely stated it: “Under my leadership, the Department of Justice will bring these practices to an end.”

The Attorney General’s memo represents a significant shift in federal policy regarding gender-affirming care for minors. It emphasizes enforcement and legislative actions aimed at curbing these practices, which could have profound implications for medical practitioners, hospitals, clinics, and pharmaceutical companies.

This is a rapidly and constantly changing area of law. Healthcare clients should stay informed about these developments and consider seeking legal advice to navigate the evolving legal environment. The professionals at Husch Blackwell are committed to helping healthcare clients remain informed on these and other pertinent topics.

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