Federal judge in R.I. refers DOJ lawyers for possible discipline over handling of transgender youth case

PROVIDENCE — A federal judge in Rhode Island has referred Justice Department lawyers to disciplinary proceedings after accusing the federal government of making “false representations” in a case involving the medical records of transgender children and teens.

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US District Court Judge Mary S. McElroy issued the order on Friday, citing “the representations made to this court” by the DOJ attorneys.

In a hearing on May 12, she had slammed the lawyers for not giving a Texas judge all of the relevant information before asking him to order Rhode Island Hospital to turn over the private medical records, including names, of children and teens treated for gender dysphoria over the past five years.

McElroy’s referral comes after a separate Rhode Island case in which the DOJ failed to disclose to US District Court Judge Melissa DuBose that an undocumented immigrant was wanted for murder in the Dominican Republic. Without that information, DuBose released the man, and now no one can find him.

“We are at the end of our tether with the DOJ making false representations to this court,” McElroy said May 12.

In a subsequent ruling the next day quashing the DOJ’s subpoena for the medical records, McElroy wrote that “the discrepancy between the honorable conduct expected of federal prosecutors and DOJ’s tactics in this case is unsettling.”

The Justice Department was seeking expansive medical records of an undisclosed number of minors who received gender-affirming care such as puberty blockers in the state’s largest hospital system, which treats children at Hasbro Children’s Hospital. The demand specifically sought the names, parents’ names, diagnoses, and Social Security numbers of the patients.

The Trump administration has been trying to track down the records of transgender medical treatment of minors across the country since last year, but has been blocked by judges in seven different federal districts, including Massachusetts.

McElroy called the investigation a ”fishing expedition” and said the subpoena was issued in “bad faith.” She also said the DOJ misled the Texas judge, Reed O’Connor, by claiming that Rhode Island Hospital had not communicated with the Justice Department about the subpoena in months.

The hospital system and the DOJ had actually emailed about it two days prior to the Justice Department asking O’Connor to enforce the subpoena on April 30, which he did.

“This reckless disregard for the duty of candor owed to a federal court is appalling,” McElroy said.

After McElroy quashed the subpoena, O’Connor ordered Rhode Island Hospital to turn the records over to him directly, and said he would not release them to the Justice Department unless they win an appeal. The hospital system, which has also appealed O’Connor’s ruling, has begun sending the records to Texas but did not release patient identities.

The Justice Department is appealing McElroy’s ruling, and said last week her allegations of misrepresentations were “without merit.”

“Such accusations against department attorneys are rare and serious,” the June 3 press release said. “Our attorneys did not misrepresent facts, withhold relevant information, or otherwise mislead the Court.”

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McElroy also accused the Justice Department of “shopping” the case to Texas despite the subpoena being issued to a Rhode Island hospital. She called the move “dirty pool.”

She also criticized a senior attorney who was at the hearing and “sat silently by as his counterpart, a junior attorney who has been practicing law for approximately six months and had no relevant information, was forced to answer questions about DOJ’s blatant disregard for the proper course of negotiations.”

The Justice Department has defended its decision to enforce the Rhode Island subpoena in Northern Texas, arguing the underlying investigation is based there.

The DOJ has said its investigation is looking into alleged “misbranding” of FDA-approved drugs for unapproved uses, in this case, as puberty blockers for young people with gender dysphoria.

Doctors are legally allowed to prescribe FDA-approved drugs off-label, and commonly do so for conditions ranging from weight loss to cancer.

Brantley Mayers, a Justice Department attorney, acknowledged in the May 12 hearing that off-label prescribing is legal, but said the agency was looking into whether pharmaceutical companies were providing “financial incentives” for the doctors to prescribe the drugs.

He said the DOJ preferred to get the names of the children and their parents so they could potentially interview them in the case.

Child advocates argue the disclosure would amount to outing transgender youth, and would violate their privacy.

NYU Langone, a hospital system in New York City, confirmed in May it received a grand jury subpoena from Northern Texas, which indicates that a criminal investigation is underway.

The subpoenas to Rhode Island Hospital and other hospital systems last summer had been administrative, not from grand juries.

McElroy’s order on Friday means the active federal judges of Rhode Island’s District Court will review the alleged misconduct of the lawyers and “determine the appropriate course of action,” said Frank Perry, a spokesperson for the court.

Perry said the options include referring the lawyers to a disciplinary agency, ordering an investigation, providing notice to the attorney of the alleged misconduct, or commencing formal disciplinary proceedings.

Asked for comment the referral, DOJ spokesperson Natalie Baldassarre pointed to her previous comments, where she told the Globe that McElroy’s “attack on the professionalism and integrity of DOJ attorneys is outrageous and unjustified.”

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