“Did the trial court err by refusing to enter a preliminary injunction that would have required respondent, Children’s Hospital Colorado (“CHC”), to repeal its recent suspension of medical gender-affirming care, when that repeal might invite the wrath of the federal government?” This was the issue considered by the Colorado Supreme Court in the opinion announced today, Boe v. Children’s Hospital Colorado.
The plaintiffs—transgender minors receiving treatment through the hospital’s TRUE Center for Gender Diversity—argued that the hospital’s suspension of puberty blockers and hormone therapy violated the Colorado Anti-Discrimination Act because the hospital continued offering the same medications to cisgender youth for other medical purposes.
The trial court denied the plaintiffs’ request for a preliminary injunction, despite finding that they were likely to succeed on the merits of their discrimination claims and that they faced immediate and irreparable harm. The district court concluded that requiring the hospital to resume treatment could jeopardize hundreds of millions of dollars in federal funding and potentially threaten the hospital’s ability to provide pediatric care throughout the Rocky Mountain region. This was based on the Department of Health and Human Services “Kennedy Declaration,” which threatened hospital providers with exclusion from federal healthcare payment programs if they provided such care to transgender youth.
The Colorado Supreme Court accepted review under C.A.R. 21 because of the urgent nature of the alleged harm and the significant public importance of the legal questions presented.
In a majority opinion authored by Justice Hood, the supreme court reversed the trial court and ordered that a preliminary injunction be issued requiring Children’s Hospital Colorado to resume medically necessary gender-affirming care pending a final decision on the merits. The court held that the plaintiffs satisfied all six factors required under Rathke v. MacFarlane for preliminary injunctive relief.
The court emphasized that Colorado law strongly protects against discrimination based on gender identity and that the public interest favored preventing discrimination against a protected class. It further concluded that the harms facing the plaintiffs—including depression, suicidal ideation, and irreversible physical changes associated with puberty—were immediate and concrete, while the hospital’s feared federal consequences remained speculative because the Kennedy Declaration itself was not federal law and had already been enjoined by a federal court in Oregon.
The court also found that the plaintiffs demonstrated a reasonable probability of success on their CADA claim because the hospital stopped providing puberty blockers and hormone therapy to transgender minors while continuing to provide the same medications to cisgender youth. According to the majority, that distinction constituted discrimination based on gender identity. Justice Boatright, joined by Justice Samour, dissented, arguing that the hospital’s actions were motivated not by discriminatory intent but by the existential threat posed by potential federal sanctions. The dissent maintained that treatment for gender dysphoria and treatment for conditions such as precocious puberty are fundamentally different medical services and therefore continuing one while suspending the other did not constitute unlawful discrimination under CADA.
The court made the order to show cause absolute, reversed the trial court’s order, and remanded the case to the trial court to grant petitioners’ motion and issue the requested injunction.
See prior reporting by Sarah Fuhrey Huber in Law Week Colorado.