The Colorado Supreme Court, by a 5-2 vote, ordered Children’s Hospital Colorado on Monday to resume providing certain medical services to a group of transgender plaintiffs, which it had ceased in the face of funding threats from the federal government last year.
The unusual appeal before the Supreme Court stemmed from a trial judge’s rejection of a preliminary injunction to four trans plaintiffs who are minors seeking treatment from Children’s Colorado. The plaintiffs filed a class action alleging that the cessation of services based on their status violates the Colorado Anti-Discrimination Act.
While multiple considerations inform whether a judge should grant an injunction, the Supreme Court’s majority concluded the plaintiffs were likely to succeed on their underlying discrimination claims and that the hypothetical harm to the broader public from withdrawn federal funding could not outweigh the plaintiffs’ rights.
Colorado Supreme Court Justice William W. Hood III speaks to students at Pine Creek High School during a Courts in the Community event in Colorado Springs on Nov. 17, 2022. (Denver Gazette file photo)
A “strict numerical comparison of affected individuals isn’t appropriate when the individuals seeking injunctive relief are part of a protected class and seeking an injunction because of discrimination based on that protected class. Were it otherwise, minority groups would always lose. But that is not the law,” wrote Justice William W. Hood III in the May 18 opinion.
Justice Brian D. Boatright dissented, arguing that Children’s Colorado had not stopped providing services to the plaintiffs because of their protected characteristics under state law.
“This decision was made only after CHC was threatened with exclusion from federal health care programs, which again, would halt all federal reimbursements and threaten the hospital’s license, accreditation, and participation in commercial insurance plans. It was a decision driven by the direct threat to the viability of the entire hospital,” he wrote for himself and Justice Carlos A. Samour Jr.
The sequence of events underlying the Children’s Colorado case began on Dec. 18, when U.S. Secretary of Health and Human Services Robert F. Kennedy Jr. published a statement declaring that “sex-rejecting procedures” for children are “neither safe nor effective” and “fail to meet professionally recognized standards of health care.”
Kennedy clarified that, while he has the authority to exclude entities from federal programs such as Medicare and Medicaid, his declaration did not constitute an exclusion. Further, any excluded entities could seek administrative and judicial review of the decision.
Days later, Colorado Attorney General Phil Weiser joined other states in suing to block Kennedy’s declaration in Oregon’s federal court. He noted that Colorado law protects the treatment implicated in Kennedy’s statement.
Then, on Jan. 2, Children’s Colorado announced it was “pausing medical gender services for patients under the age of 18 as we wait for any federal court rulings and assess the rapidly evolving legal landscape.”
Four trans children, through their parents, sued Children’s Colorado, alleging the hospital was violating the Colorado Anti-Discrimination Act. After a hearing in early February, Denver District Court Judge Ericka F.H. Englert declined to issue a preliminary injunction requiring Children’s Colorado to resume its care.
Englert acknowledged that the plaintiffs would likely succeed on their claims that Children’s Colorado was violating their rights on the basis of gender identity or disability. However, she believed it would be too risky to order Children’s Colorado to cross the federal government and potentially trigger an end to its participation in federal programs, which, in turn, could end its relationship with commercial insurers.
“Plaintiffs essentially ask the Court to call the bluff of the federal government and order CHC to take action in violation of federal law,” she wrote. “The Court cannot discount the very real possibility that the federal government will take enforcement action against CHC.”
Robert F. Kennedy Jr., President Donald Trump’s choice to be Secretary of Health and Human Services, appears before the Senate Finance Committee for his confirmation hearing, Jan. 29, 2025, at the U.S. Capitol. (The Associated Press)
The plaintiffs appealed to the Supreme Court, arguing Englert had essentially found that violations of the Colorado Anti-Discrimination Act were in the public’s broader interest.
Prior to oral arguments, a federal judge in Oregon blocked Kennedy’s declaration. But Children’s Colorado warned that the Health and Human Services Office of the Inspector General could still take action to exclude it from Medicare and Medicaid.
“Federal exclusion is a death sentence,” its attorneys wrote.
During oral arguments, the hospital maintained that it has discretion over which services to provide, and it can make decisions for budgetary, logistical, or other reasons.
“The challenge I have here, though, is that it was providing this care. And all of a sudden, it stopped,” said Chief Justice Monica M. Márquez. “And it is providing essentially the same medications, etc. to cisgender children.”
“You’re giving it to one group of children and not to another. How is that not discrimination?” added Justice Susan Blanco.
Attorney Paula Greisen, representing the plaintiffs, argued that Children’s Colorado could seek relief from the federal judiciary and would likely succeed if the government moved to exclude it from federal health programs.
“There are probably 25-40 different types of injunctions right now based on the federal administration’s attempt to take away federal funding,” she said during the oral arguments. “What this court has to do is enforce the law.”
“I think we are all in favor of enforcing those laws,” responded Samour. “In this case, it gets really complicated because the hospital is saying, ‘Look, if we’re required to continue to provide treatment, all these horrible, catastrophic things will very well happen.’”
Children’s Hospital Colorado in Colorado Springs. (Courtesy of Children’s Hospital Colorado)
Ultimately, the majority agreed that the plaintiffs were likely to succeed on their discrimination claims. Hood noted that the treatments Children’s Colorado withheld from trans minors were still being provided to other patients. Moreover, he observed that Kennedy’s declaration was not law, and there was a process for challenging any adverse action the federal government may take.
“Therefore, given all of the contingencies in play and the various opportunities CHC has to avoid exclusion, we conclude that the actual immediate and irreparable harm to petitioners outweighs the speculative harm CHC may face if the federal government further acts against it,” Hood wrote.
Boatright, in dissent, wrote that Children’s Hospital could not discriminate against the plaintiffs if discrimination was not its motive.
“CHC has made it very clear that its decision to stop the provision of medical gender-affirming care to minors does not come from a place of animus, disdain, or disapproval of transgender individuals seeking these kinds of services. In fact, the very opposite is true,” he argued.
In a statement, Children’s Colorado said it is reviewing the decision and will provide guidance “in the near future.”
“This ruling reaffirms that Colorado’s civil rights laws apply fully and equally to transgender youth and that hospitals cannot selectively refuse treatment because of political pressure or ideology,” said John M. McHugh, an attorney for the plaintiffs.
The case is Boe et al. v. Children’s Hospital Colorado.