The justices on Colorado’s highest court struggled Tuesday with questions about what happens when a state antidiscrimination law collides with federal threats against people the law protects.
The case involves a decision by Children’s Hospital Colorado to suspend certain forms of gender-affirming care for transgender youth. Children’s made the decision after an escalating series of threats from the federal government to crack down on hospitals that provide the care. Children’s said continuing to provide gender-affirming care risked punishment that could force the hospital system to close and cause pediatric care across Colorado to collapse.
Several transgender children and their families sued the hospital, saying the suspension violates the Colorado Anti-Discrimination Act, which prevents discrimination based on gender identity and gender expression. State legislators strengthened protections in the law for transgender people last year.
The families are asking for an injunction that would require Children’s to resume gender-affirming care. But Paula Greisen, an attorney representing the families, argued Tuesday that the case is more important than that — it’s a test of whether state laws can stand up against threats from the federal government.
“At the end of the day, if states don’t retain their sovereignty and the laws aren’t enforced, then it doesn’t matter how much our General Assembly stands up to the Trump administration or any administration and says, ‘We’re going to protect these groups,’” Greisen told the seven justices of the Colorado Supreme Court. “If the court doesn’t enforce those laws, then all those laws become a house of cards.”
In response, attorneys for Children’s said the families’ argument was “legally untenable” because it would force the hospital to put hundreds of thousands of patients’ care at risk and also constrain the hospital’s independence in determining which services it offers and which it doesn’t.
“In this case, the hospital had a decision that for a period of time they were rendering gender-affirming medical care as a service,” Patrick O’Rourke argued. “When there were existential threats made to the hospital based upon the actions of the federal government, it made a determination to suspend that particular service.”
A trial court judge sided with Children’s in February. The judge concluded that, although the families would likely be able to prove they have been discriminated against and that their children are suffering irreversible harm, public interest weighs in favor of the hospital’s argument.
But justices on the Supreme Court had more pointed questions.
Gender-affirming medical care involves prescriptions for things like puberty blockers or hormones. Children’s continues to provide those medications to cisgender patients when medically appropriate.
Several justices zeroed in on that fact, questioning why the same medications are allowed for one group of patients but not another.
“How is that not discrimination?” Justice Susan Blanco asked.
O’Rourke said the medications are being provided for different reasons. Cisgender children may receive them for early onset puberty, while transgender children may receive them for a diagnosis of gender dysphoria.
Greisen, the families’ attorney, argued that’s semantics.
“They’re all trying to align the timing of puberty,” she said.
Justice Richard Gabriel appeared to agree, saying, “I guess I worry how that’s not a pretextual argument to allow discrimination.”
O’Rourke also said the hospital’s actions aren’t discriminatory because the hospital continues to provide gender-affirming care for patients ages 18 and older. The federal government has only sought to restrict care for transgender youth under the age of 18. This means, O’Rourke said, that Children’s is not discriminating broadly against transgender people but rather is making an age-specific decision about which services to offer.
“You can’t infer any type of animus on the part of Children’s Hospital,” he said.
The justices had equally pointed questions for Greisen when she argued that court rulings outside Colorado mean that Children’s fear of punishment is “completely imaginary.”
“They just want this court to rewrite the law and say they are too important,” Greisen said.
Some justices pushed back on that argument.
“I think we all are in favor of enforcing those laws,” Justice Carlos Samour said. “In this case, it gets really complicated, because the hospital is saying, ‘Look, if we’re required to provide this treatment, all these horrible, catastrophic things may very well happen.’”
Added Gabriel: “The trial court here found perfectly rationally that, ‘The plaintiffs are asking me to call the federal government’s bluff, and the injury if I lose on that would be dramatic.’ So how do we overturn that?”
There is no timeline for when the Supreme Court may issue its ruling.
Scott Skinner-Thompson, a professor at the University of Colorado Law School who specializes in civil rights law, said it is rare to see a case like this one where a trial court judge has found that plaintiffs are being discriminated against but then declined to issue an injunction to stop it.
He said the case may come down to whether the court believes Children’s is facing an active threat of punishment. A federal judge in Oregon has said he intends to strike down a finding by Health and Human Services Secretary Robert F. Kennedy Jr. that declared gender-affirming care to be bad medicine. But Children’s says the federal government could still punish it without that declaration in place, and a federal official previously said the hospital has been referred for investigation.
If the courts were ultimately to decide that President Donald Trump’s administration can punish hospitals that provide gender-affirming care to kids, Skinner-Thompson said that brings up even bigger questions about whether federal law could possibly preempt Colorado protections for people who are transgender.
“Assuming that what the Trump administration does is lawful, I think we get some difficult conflict of law questions,” he said.