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House, pediatricians battle over subpoena

Photo by Tim Mossholder on Unsplash

By Dara Kam

News Service of Florida

May 23, 2023

TALLAHASSEE — A statewide pediatricians association is pushing back in federal court against the Florida House’s efforts to obtain internal communications showing how the group adopted standards of care for the treatment of gender dysphoria.

House Health & Human Services Chairman Randy Fine, R-Brevard County, issued subpoenas last month, amid efforts by Gov. Ron DeSantis and Republican legislative leaders efforts to wipe out care such as puberty blockers, hormone therapy and surgical procedures for transgender minors.

Fine issued the subpoenas after House Speaker Paul Renner, R-Palm Coast, directed the committee to launch an investigation into standards of care adopted by Florida Chapter of the American Academy of Pediatrics and the Florida Psychiatric Association.

The pediatricians’ group filed a federal lawsuit, arguing that the communications sought by the House are speech protected by the First Amendment.

Compliance with the subpoena issued to the group would result in “disclosure of the position of individual members with respect to a controversial political issue,” which “not only violates the First Amendment rights of those individuals but can reasonably be expected to discourage future membership in the association,” Tallahassee attorney Barry Richard, who represents the pediatricians, wrote in the challenge filed May 1.

The subpoenas are aimed at getting information related to guidelines established by the World Professional Association for Transgender Health, or WPATH, and the Endocrine Society. Dozens of medical groups — including the two Florida groups targeted by the House — point to the WPATH guidelines, which have been revised eight times over the past two decades, to support the treatments.

The subpoena issued to the pediatricians’ group seeks communications regarding “the development, endorsement, and recommendation” of the standards or “reflecting disagreement or skepticism” by the group’s members or other health-care practitioners of the standards of care. Fine’s committee is also asking for communications related to the group’s “consideration and rejection of the view that the standards of care should not include gender-affirming care.” The House also is requesting communications “that reference social media, peer influence, or other social influences relating to gender dysphoria in children and adolescents.”

The pediatricians association contends that the effort to compel the group to disclose “communications, positions, and thought processes among its members with respect to a matter that has become the subject of public and political controversy” violates the doctors’ speech rights. The group has asked U.S. District Judge Allen Winsor to issue a preliminary injunction blocking the subpoena.

“It is well settled that the First Amendment prohibits government, in the absence of a compelling state interest, not only from directly suppressing speech and association, but from doing so indirectly by demanding disclosure of private communications or otherwise taking action that can reasonably be expected to intimidate persons into refraining from exercising their rights of speech and association,” the lawsuit said.

But in a response filed last week, the House committee argued that the state “has well-established, compelling interests in the practice of medicine within its borders and in the health and welfare” of Florida children.

“If a group of Florida practitioners are employing and promoting the use of novel and seemingly harmful procedures on minors, the House undoubtedly has authority to investigate,” David Axelman, general counsel for the Florida House, wrote. “The House’s concern, of course, is that medical organizations in Florida may be parroting and promoting ideological standards that are thinly disguised as medical standards and then manufacturing a false ‘consensus’ to encourage the widespread adoption of harmful medical practices. That is profoundly a matter of state concern.”

Richard, however, disputed the House’s rationale in a reply filed Tuesday.

“Those types of amorphous justifications, unsupported by evidence, could be used by the state to justify invasion of anyone’s First Amendment rights,” he wrote.

The “private communications” between “identified private persons” linked through a “private association” are protected by the First Amendment, Richard argued.

“Anonymity is a shield from the tyranny of the majority,” Richard wrote, quoting from a 1988 U.S. Supreme Court ruling.

The House’s requests for information are similar to legal wrangling over records in a lawsuit challenging the DeSantis administration’s decision to prohibit Medicaid coverage of treatments for gender dysphoria for children and adults. The federal government defines gender dysphoria clinically as “significant distress that a person may feel when sex or gender assigned at birth is not the same as their identity.”

A federal judge in February sided with the state and ordered national medical groups to provide testimony about how the guidelines for the care were established. The groups’ appeal of the ruling remains pending.

The subpoena fight also comes after DeSantis signed a package of bills on LGBTQ-related issues. One of the measures builds on rules adopted by state medical boards that ban doctors from using puberty blockers, hormone therapy and surgery for children diagnosed with gender dysphoria.

Another measure, sponsored by Fine, aims to block venues from admitting minors to drag shows. An Orlando restaurant has filed a federal lawsuit challenging that new law.

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