Aziz Huq Writes About Recognizing Patient-Physician Privilege

Courts can protect trans healthcare by recognizing patient-physician privilege

Information, in the second Trump administration, is a currency of power and fear. Last week, Atty. Gen. Pam Bondi announced sweeping subpoenas targeting physicians and medical providers who offer care for transgender youth. The aim is not to initiate prosecutions: Indeed, the legal theories upon which such prosecutions might rest are tenuous at best.

By filing these investigative demands, the government plainly hopes to chill medical providers from offering expert care. This strategy can work even if, at the end of the day, the government’s threats are hollow as a matter of law. The White House’s plainly unconstitutional attacks on law firms, for example, have substantially worked — even though the minority of firms to challenge the orders rapidly won relief.

Fortunately, the legal system is not powerless in the face of such overreaching: Federal district courts have the authority, and the obligation, to recognize that patient-physician dealings are akin to attorney-client and spousal discussions. Both of the latter benefit from judicially created privileges — or legal shields that individuals can invoke against the state’s probing. At a moment when not just gender medicine but also reproductive care more generally is in peril, federal courts can and should step in and shield intimately private medical data as well.

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