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Illinois Act Protecting "Lawful Reproductive or Gender Affirming Care" Doesn't Shield World Prof. Ass'n for Transgender Health (WPATH) from Subpoena
From M.H. v. Adams, decided Friday by Magistrate Judge Keri L. Holleb Hotaling (N.D. Ill.):
In the wake of Dobbs v. Jackson Women's Health Organization (2022), Illinois enacted the Lawful Health Care Activity Act to ensure "that Illinois would remain a beacon of hope and an island for reproductive justice for all who seek it" and that "[a] medical decision should be made between a patient and their doctor—no one else." The Act "[s]hields individuals in Illinois from subpoenas, summons, or extraditions related to lawful reproductive or gender affirming care in Illinois" and "[r]equires courts in Illinois to apply Illinois law in cases involving reproductive health care."
In a case of first impression in federal court involving the Act, the World Professional Association for Transgender Health ("WPATH"), an Illinois non-profit organization, invokes the Act and raises other arguments in response to a third-party subpoena … issued to it by the Director of the Idaho Department of Health and Welfare … relating to M.H. v. Smith et al., C.A. No. 22-409 (D. Idaho) ("the Underlying Action"). The Underlying Action involves two transgender Idahoans who sued directors of two Idaho departments of government challenging an Idaho Medicaid policy and state law that exclude coverage and/or the use of state funds for certain healthcare or procedures for transgender individuals. The plaintiffs in the Underlying Action rely upon WPATH's promulgated standards of care for the treatment and health of transgender and gender diverse people to support their claims that the Idaho policy and law operate to deny them healthcare that is medically necessary.
WPATH moved to quash the subpoena, but the court concluded that the Act did not protect WPATH here:
WPATH is "a non-profit" and "international membership organization" whose "mission is to promote evidence-based care, education, research, public policy, and respect in transgender health." "WPATH members engage in clinical and academic research to develop evidence-based medicine." WPATH itself "establish[ed] and update[s] the WPATH Standards of Care (SOC) for the treatment and health of transgender and gender diverse people globally." The "SOC articulate a professional consensus about the psychiatric, psychological, medical, and surgical management of transgender and gender diverse people." Volunteer "medical experts every year" help WPATH "to understand the latest science," and also "review and edit [WPATH] publications, educational materials, curriculum, and public statements." …
WPATH contends the Act shields it from complying with the Subpoena. WPATH argues that, by creating and promulgating SOC for gender dysphoria, it engages in lawful health care activity as defined under the Act, and that the Act therefore protects against the Subpoena. The Director insists the Act has no implication here. This appears to be a case of first impression; no federal court has yet interpreted the Act in a situation such as this, where a third-party foreign subpoena was issued to an Illinois non-profit like WPATH….
The Act generally bans the provision of information or expenditure of any State resource "to assist any individual, or out-of-state officer, official, agency, entity, or department seeking to impose civil or criminal liability upon a person or entity for lawful healthcare activity," and accordingly forbids an Illinois "clerk of court" from issuing (and permits a recipient to move to modify or quash) "a subpoena based upon a foreign subpoena that" either "requests information or documents related to lawful health care activity" or "is related to the enforcement of another state's law that would interfere with an individual's rights under the Reproductive Health Act." The Act defines "[l]awful health care" in relevant part as "the treatment of gender dysphoria …, including, but not limited to, all supplies, care, and services of a medical, behavioral health, mental health, surgical, psychiatric, therapeutic, diagnostic, preventative, rehabilitative, or supportive nature that is not unlawful under the laws of this State …." "Lawful health care activity" is defined as "seeking, providing, receiving, assisting in seeking, providing or receiving, providing material support for, or traveling to obtain lawful health care."
{The Director argues this language directing Illinois clerks of courts not to issue subpoenas does not apply in federal court; the Court understands WPATH's argument to be not that Illinois law prevents issuance of the Subpoena but that the Illinois law demonstrates an intent to shield certain types of information from disclosure, in the nature of a privilege or other protection.} …
WPATH does not contend it is comprised of individuals seeking or receiving lawful health care in Illinois. And, at oral argument, WPATH's counsel conceded that WPATH is not a doctor, hospital, or other direct provider of health care procedures in Illinois. When pressed regarding which of WPATH's actions bring it within the Act, WPATH's counsel explained that it was through setting and providing the SOC for gender dysphoria treatment…. [T]he Court cannot discern from the Act's language or the stated legislative intent that the creation or issuance of standards of care regarding treatment for gender dysphoria would fall within the definition of "lawful health care activity." …
[L]egislative text and commentary (and even later statements regarding the Act) addressed protections for "patients, families, and providers" against "foreign subpoenas, summonses, extradition and foreign judgments related to lawful …. gender-affirming care in Illinois." WPATH is none of those under the circumstances presented here, although the Court could envision statutory protection for a non-profit organization like Planned Parenthood Federation of America, Inc. against a subpoena seeking information about its patients and providers in Illinois.
And, while the phrase "providing material support for" lawful health care activity broadens the Act's coverage to individuals or entities beyond the person receiving or providing the lawful health care, the parties provided little to aid in interpreting the meaning of "providing material support" for lawful health care activity. The Court's research disclosed that providing material support, in other contexts, has been found to encompass donating funds, "supplying information to the Cambodian Freedom Fighters (CFF) about the Cambodian government's plans to arrest CFF members and about the strength of the Cambodian military in certain areas," and providing interpreter services for a terrorist organization leader during medical appointments and social events. Each suggests more direct involvement than creating and broadly distributing general guidelines or protocols in a professional field. On the information at hand, the Court concludes WPATH's asserted conduct here—compiling information to create standards for the treatment of gender dysphoria—does not constitute providing or providing material support for a lawful health care activity within the meaning of the Act; the Act therefore does not provide a basis to quash the subpoena under Rule 45(d)(3)(A)(iii).
The following additional and related points bolster that conclusion on the issues here. First, standards of care are routinely established through expert testimony subject to cross-examination and other rigors. See, e.g., Wand v. Johnson (W.D. Wis. 4, 2022) (issuing subpoenas for witnesses listed as experts to testify regarding "applicable protocols for nurses treating patients with symptoms of appendicitis"); S.W. by & through Wojcehowicz v. United States (N.D. Ohio 2021) (requiring submission of "expert report under Rule 26(a)(2)(B) before" witness could "offer[ ] testimony on the applicable standard of care"); Blanquart v. Kalayil (Ill. App. 2025) (explaining that plaintiff bears "the burden to present expert testimony" showing "the defendant 'deviated from the standard of care'"). It strikes the Court as doubtful that information related to WPATH's SOC would be rendered undiscoverable without a clear legislative indication that result was intended.
Second, although legislators sought to prevent the "criminaliz[ation of] parents seeking healthcare for their children" or people just "looking for help," the Subpoena was not issued in relation to a state's attempts to enforce its laws criminalizing or penalizing what in Illinois is lawful health care. Instead, the Director seeks the information as part of its defense against claims brought by Idaho residents claiming that WPATH's SOC establish the standard of care for gender dysphoria and that a failure to follow the SOC violates their rights. WPATH consistently trumpets that its SOC are "widely accepted" and "articulate a professional consensus about the psychiatric, psychological, medical, and surgical management of transgender and gender diverse people" and thus appears to desire its SOC be wielded as plaintiffs in the Underlying Action are wielding them—as incontrovertible treatment specifications. The stated purposes of the Act do not neatly encompass WPATH's gambit to cloak from inquiry its SOC under these circumstances. Accordingly, the motion to quash is denied on this ground….
But the court hasn't yet resolved WPATH's two other arguments, "that the Subpoena imposes an undue burden upon WPATH and violates the First Amendment rights of its members":
[T]he parties' submissions provide insufficient information, particularly because the Court is not familiar with the Underlying Action and issues. The Court orders the following: (1) within seven days of the date of this ruling, the counsel for the parties shall meet and confer in person or through videoconference (not telephone) to attempt to agree on the scope of WPATH's production in light of this ruling and then, within four days of their conference, the parties shall jointly report the result of their conference; and (2) upon receipt of the parties' joint report, the Court will determine whether further briefing from the parties is necessary in advance of a hearing on the Subpoena or whether, at this stage, the Subpoena should be transferred to the issuing court pursuant to Federal Rule of Civil Procedure 45(f).
