The federal government is escalating efforts to seek private medical data for children undergoing gender-affirming care, as at least one hospital faces the first known criminal probe of its kind.
Last week, NYU Langone Hospitals in New York City received a grand jury subpoena for information about young patients who received gender-affirming care at their facilities anytime in the past six years.
A grand jury subpoena indicates that a federal criminal investigation is underway. This would be a first in regards to gender-affirming care.
The subpoena came from the U.S. Attorney’s Office in the Northern District of Texas, part of the Justice Department. The office is also seeking the names of hospital employees involved in providing gender-affirming care. The government has previously sought medical records of transgender kids from other states, and so have Texas officials, but not like this.
Parents of trans youth under the age of 18 who have received care at NYU Langone got a notification from the hospital alerting them to the grand jury subpoena. According to that notification and to the hospital’s public statement, NYU Langone is one of several institutions that received a subpoena May 7. The hospital said it is still evaluating how it will respond to it.
New York law prevents the disclosure of medical records related to gender-affirming care and abortion except in limited circumstances and broadly prohibits law enforcement from cooperating with investigations into gender-affirming care. This sets up a potential legal fight over the subpoena.
Several legal battles are currently playing out in response to other attempts from the government to obtain trans kids’ medical records.
Eleven families just filed a class-action lawsuit to block the Justice Department from obtaining confidential information about young trans patients seeking gender-affirming care. The agency sent more than 20 subpoenas last summer to doctors and clinics involved in providing such care, with the intent to investigate “healthcare fraud, false statements, and more.” Both the Justice Department and the Federal Trade Commission (FTC) have sought to investigate gender-affirming care as medical fraud.
Multiple judges halted these DOJ subpoenas in their tracks, after hospitals fought back. A federal judge in Massachusetts called the agency’s investigations into gender-affirming care “motivated only by bad faith.” A judge in Colorado, who blocked a similar subpoena, said patient medical records must be protected from “improper disclosure.”
Separately, a federal judge this month temporarily blocked the FTC from investigating two medical groups that support gender-affirming care for transgender people. Those groups, the World Professional Association for Transgender Health (WPATH) and the Endocrine Society, were served civil investigative demands for years of internal records and financial information. Both groups sued.
Over the past year, hospitals in states like New York, where gender-affirming care is legally protected, have come under pressure by the federal government to halt care for trans youth. For patients, that care has been spotty: earlier this year, NYU Langone halted gender-affirming care for young patients, citing “the current regulatory environment” as a key reason. More than 40 hospitals across the country have done the same, per STAT News.
Gender-affirming care for trans youth primarily refers to hormone therapy and puberty blockers used to treat gender dysphoria, which is a medical condition that can cause significant distress. Very few transgender youth seek and access surgeries. Restricting gender-affirming care is a top priority of the Trump administration, which has proposed regulations to greatly restrict the care for youth and stated its opposition to trans identity as a whole.
We spoke to experts about Kennedy’s claims about sperm and fertility — including the author of the study he cited.
This story was originally reported by Mariel Padilla and Jennifer Gerson of The 19th. Meet Mariel and Jennifer and read more of their reporting on gender, politics and policy.
Secretary of Health and Human Services Robert F. Kennedy Jr. has, historically, been very public about his concerns about what is plaguing the nation’s well-being. His long, complicated history with vaccines is well-documented. So is his long-standing spat with fluoride. Unlike President Donald Trump, he is not a fan of fast food, but he is a big believer in animal protein and raw milk.
And this week, he spoke about another issue vexing him: men’s sperm count.
“The fertility crisis for women began in 2007; for men in 1970. Men had twice the sperm count as our teenagers do today. This is an existential crisis for our country. We had a series of presidents who were trying to discourage childbirth and motherhood in this country. We now have a president who is trying to encourage it,” Kennedy said at a White House event on maternal health Monday.
While many experts agree that sperm counts are likely lower than they were decades ago, it is less clear how much influence a declining sperm count has on the country’s falling birth rate.
What the science says
Dr. Hagai Levine, the lead author the study Kennedy referenced and chairman of Israel’s association of public health physicians, said he agrees with Kennedy’s characterization that there is a “crisis.”
“I truly believe based on the data that there is a male fertility crisis globally and in the U.S.,” said Levine, who is also an environmental epidemiologist and public health physician at Hebrew University of Jerusalem. “It’s manifested in a biological measurement, which is remarkable. It’s not a soft measurement; it’s something that you can count very accurately.”
Levine said his 2022 study, a systematic review of 223 studies, found a 50 percent decline in both sperm concentration and total sperm count between 1973 and 2018 across North America, Europe and Australia.
“We expected to find a subtle decrease over time, not a drastic decrease,” Dr. Scott Lundy, the study’s lead author and Urology Program Director at Cleveland Clinic, said in a blog post. “I think finding nothing at all was a little bit surprising, and it certainly does not mean that we can ignore this issue or not study this further. But in this case, I think there’s at least some evidence to suggest that we can be somewhat reassured.”
Without speaking to any specific studies, Levine said that different methodologies could yield contradictory results. In a meta-analysis, he emphasized the importance of comparing only studies with similar laboratory methods.
“It’s good that in science there are others who make other claims and try to look at other things,” Levine said. “But when I looked at the literature, I was not convinced that there is no decline. I plan to update our study; maybe there is new data. And I hope that I will find that the decline stopped or even reversed.”
Levine said recent studies show that a lower sperm count is associated with higher morbidity — meaning a low sperm count can be a marker of poor health in general. He said more research needs to be done to identify the cause of declining sperm counts, but research on animals has shown that certain chemicals disrupt the endocrine system. Obesity, lack of physical activity, smoking, binge drinking, certain drugs, occupational exposures and climate change, specifically rising temperatures, also likely impact sperm health. Levine said his research findings are a clear sign that something is wrong with men’s health on a global level.
But how much does a declining sperm count impact the falling birth rate in the United States? Levine said it’s not clear, but he suspects that social factors play a bigger role.
“We know that, for example, women’s education is very related to the number of children in a family,” Levine said. “So I would assume that social demographic changes are the main reason for the shifting trends in fertility, meaning the number of children per woman of childbearing age in the United States and in many other countries.”
Dr. Michael Eisenberg, a professor of urology at Stanford University, said reports of declining sperm counts have been circulated in urologist circles for decades. While more controversial in the 1990s and 2000s, Eisenberg said there’s been increasing evidence from larger and more comprehensive papers published in recent years.
“There is still some controversy in the field, but I think generally the consensus is — and I certainly believe — that sperm counts are declining,” Eisenberg said.
Most of the studies on sperm count are meta-analyses, which are studies of studies. There is no systematic tracking of sperm count or national effort to monitor semen health in the United States.
“When people think about fertility, I think that unfortunately the male role in that is somewhat undervalued and underappreciated,” Eisenberg said. “I think bringing a lot more attention to it is important. Women have regular cycles, so they have some sense of their fertility potential, whereas men don’t have that feedback.”
Administration messaging
It’s not the first time that Kennedy has talked about sperm count. In December, he mentioned it during a HHS announcement about coverage for in vitro fertilization (IVF). In April 2025 he made similar remarks to Fox News’ Jesse Watters, asserting that “an American teenager today has less testosterone than a 68-year old American man.”
Kennedy’s language echoes messaging from Trump himself; Trump has called himself the “fertilization president” and the “father of IVF.” At the maternal health care event Monday, he referred to himself as the “father of fertility.” Other members of the administration have also expressed concerns about fertility.
“Let me speak a little bit about the reality that 1 in 3 Americans are under-babied,” Dr. Mehmet Oz, head of the Centers for Medicare and Medicaid Services, said at the Monday White House event “What does under-babied mean? That means that you either don’t have any children or you have less children than you would normally want to have.”
The administration has long courted adherents to pronatalism, or the belief that a declining birth rate is the primary problem of our times — and that everyone should do their part to reverse course by having as many children as possible. (Sometime Trump ally and former head of the so-called Department of Government Efficiency, or DOGE, Elon Musk, is an avowed pronatalist and is believed to have fathered at least 13 children by at least four different women.)
And baked into pronatalism are traditional gender roles and an insistence that women’s ultimate work is having babies.
Kennedy’s comments draw a direct connection between paying attention to the sexual function of men with the need of women to birth babies.
What women want
Karen Guzzo, PhD, is a professor of sociology and the director of the Carolina Population Center at the University of North Carolina; she’s an expert on fertility preferences and fertility behaviors.
Guzzo said that Kennedy’s comments reflect an insistence on finding a physiological reason for population decline, despite there being no evidence for that.
The reality is that most Americans who want to have children want to have two or three children.
“The reason that people aren’t having kids or are delaying having kids isn’t because they’re physically unable. It’s because they don’t feel like they’re able to have kids at that point in their life, given their social and economic circumstances,” she said.
Any increase in infertility is largely due to more people delaying having children.
“People aren’t just deciding at 18, ‘Oh I don’t even want to have kids until I’m 38.’ It’s usually because they want to get to a point in their life where they’re like, ‘All right — now I have enough money. Now I have a stable partnership. Now I feel that I can provide a good life for children,’” she said.
What research has shown, in other words, is that what really delays someone from having children are economic and social conditions. Guzzo said some of the key factors that allow people to feel the necessary security are affordable childcare, strong unions and union jobs, affordable higher education, and accessible healthcare — including maternal and reproductive healthcare.
The focus on sperm count? A “clear misdirection,” she said.
“Young women are like, ‘Yeah I’m not asking for the most sensitive guy in the world. I just want a guy that thinks that I should not die in childbirth and that I can also have a job,’” Guzzo said. “Real men are secure enough in their masculinity that they can, in fact, change diapers and stay home with their children and be active parents.”
When I tell people the premise of Ignore All Previous Instructions, they often remark how it reminds them of real life these days. In Ignore, the characters live in a space colony on Callisto where a generative AI company owns everything – and where making art or telling stories, without the AI’s assistance, is strictly not allowed. (snip)
Another part of the novel, even closer to my heart and equally timely, was the problem of queer self-expression and book bans.
In 2023, I was at an early stage in therapy. I was just starting to think back, in ways I hadn’t allowed myself before, about how some of my experiences growing up had shaped me. This included a lot of things, many of them not germane to this post, but it also included the experience of growing up queer without understanding that that’s what it was. (snip-MORE, and it’s really good; go read it!)
The Supreme Court’s decision in Callais continues to make clear all the reasons we needed, and continue to need, a Voting Rights Act. And it isn’t about protecting white voters. Congress had an entirely different intent when it passed the Act, an intent that DOJ has forgotten to remove mention of from its website:
Section 2 “prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the [specified] language minority groups,” according to the website, which hasn’t been updated by this administration, at least not yet. “[T]he Supreme Court explained that the ‘essence of a Section 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.’” Congress clarified that the courts should look to “the history of official voting-related discrimination in the state or political subdivision,” when determining if the law has been violated. In the states hurriedly enacting new maps that eliminate Black voting power, that history involves denying Black people the right to vote. Instead of using Section 2 to fix that, the Court and Southern state legislatures are turning the law on its head and making a mockery of the rights it was meant to protect.
When the Court gutted Section 5 of the act in Shelby County v. Holder, Justice Ruth Bader Ginsburg accused the majority of shutting the umbrella that was meant to protect voters in the middle of a rainstorm who weren’t getting wet, because the umbrella was working. The case was decided in 2013, but even before the Supreme Court formally gutted Section 5 of the Act, repressive measures were being adopted in states like Alabama, which adopted a stepped-up voter identification requirement that made it more difficult for parts of the population, including Black voters, to exercise their rights, expecting that the Court would do away with Section 5’s preclearance provision.
A study at the Brennan Center explained the impact: “The racial turnout gap — the difference between white and nonwhite turnout rates in elections — has been consistently growing since at least 2008, reaching 18 percentage points in the 2022 midterm elections. If the gap did not exist, nearly 14 million additional ballots would have come from voters of color that year.” The analysis was based on nearly 1 billion vote records and controlled for factors like regional differences, income, and education.
The kind of behavior the Act was meant to prevent is exactly what’s happening, as Black voting power is diluted with new maps that are being adopted. And the Court seems to have abandoned its allegiance to the Purcell principle, which it has used in the past to prevent changes from being made too close to an election. Some of the new measures adopted by the states are being challenged, or will be challenged in court, and we’ll get a chance to see if the rules are different now that the Court is focused on protecting white voters from discrimination, which was the story behind Callais.
For instance, Tennessee’s extraordinary gerrymander was accompanied by a change to state law, so that election officials no longer have to advise voters about changes to their designated polling places as a result of the newly drawn maps. It’s easy to imagine how this plays out: voters with limited time because of family responsibilities go to what they think is the right polling place. They wait in a long line, maybe for hours, before being told they’re in the wrong location. At every step, the process is being redesigned to insert more friction, in hopes that Democratic-leaning voters will be dissuaded from participating. As Marc Elias noted, “Republicans defended the map by claiming that only population and politics were considered when the new map was created, not race.” But of course, the two are inextricably intertwined in Southern elections, despite the pretense the Court adopted.
To put all of this into context, consider the importance of the right to vote. At bottom, it’s the right that unlocks all of the other rights, the essence of democracy. Efforts by the Trump faction to impede that right—whether it’s by making it more difficult to register, more difficult to vote, or more difficult to have your vote count—is an effort to lock up all of our other rights.
The NAACP filed a lawsuit challenging Tennessee’s new gerrymander late last week. The complaint explains that “The timing of drawing Tennessee’s congressional districts is governed by Tennessee law, including Section 2-16-102 of the Tennessee Code, which provides: ‘The general assembly shall establish the composition of districts for the election of members of the house of representatives in congress after each enumeration and apportionment of representation by the congress of the United States. The districts may not be changed between apportionments.’” The NAACP is asking the court to issue a declaratory judgment that the late-decade redistricting violates the law and to enter an injunction that will prevent the new maps from going into effect.
There are reports that South Carolina is getting ready to join in this week, with a proposal that would gerrymander its only Black member of Congress, Jim Clyburn, into a district that, at least in theory, is designed to make it more difficult for the veteran Congressman to win. But it’s not clear that the South Carolina Senate will extend the legislative session to permit action to be taken. Currently, the state has seven seats in the House and only one Black representative, although the state is roughly 25% African American.
Alito’s Mistake in Callais
Late last week, The Guardian reported that Justice Alito relied on flawed data to justify his majority opinion in Callais. That opinion is predicated on the view that it is no longer necessary to apply the Voting Rights Act as a corrective for historic voter suppression because Black voter turnout has caught up. Of course, that doesn’t square up with the Brennan Center data we discussed up above. But Alito wrote that Black voter turnout exceeded white voter turnout in two of the five most recent presidential elections, both nationally and in Louisiana. He relied on data that the Solicitor General of the United States, who was not a party to the case, but who filed an amicus brief, presented to the Court:
The data is flawed because it calculates voter turnout in Louisiana as a proportion of the total population of each racial group, for people over the age of 18. But that isn’t the same as calculating eligible voters, because total population includes non-citizens, people with felony convictions, and others who are ineligible to vote. For instance, Black people are more likely to have felony convictions in South Carolina than white people are, which skews the data.
Perhaps Justice Alito should have paid more attention to Justice Ginsburg’s explanation about closing the umbrella prematurely. She was right.
Oral Argument in the DC Circuit on Trump Executive Orders
On Thursday, the D.C. Circuit will hear oral argument in the cases regarding Trump’s executive orders that were designed to punish law firms. The terms of the executive orders made it more difficult, if not impossible, for law firms that the president viewed as representing clients or causes he disagreed with to do business. The cases brought by the law firms have been consolidated for the appeal. So far, every court to consider one of the orders has found them to be illegal.
We discussed the executive orders here when they were first issued, and again here, when the administration dismissed the appeals it will argue later this week before abruptly changing course and asking to reinstate them.
Four law firms are involved: Perkins Coie, Jenner and Block, WilmerHale, and Susman Godfrey. There is also an executive order against Mark Zaid, a lawyer known for his work representing whistleblowers. He is represented by Abbe Lowell. Lowell has argued in his briefs that the executive orders turn security clearances, necessary for lawyers in this field to do business, into political weapons.
Perkins Coie’s brief to the Court of Appeals opens like this: “One year ago, the President did something no other president had done before: issue an executive order declaring a law firm whose clients and representations he dislikes ‘dishonest and dangerous’ and deploying the levers of federal power to try to put the firm out of business. That was a perilous moment for appellee Perkins, the legal profession, and the rule of law. Nine law firms, cowed by the threat of firm-ending sanctions, ‘settled’ with the President …Four different district judges recognized the President’s executive orders for what they are: shocking abuses of power that trample the constitutional rights of the law firms and their clients. This Court should recognize the same.” Two of the judges on the panel that will hear the case, Chief Judge Sri Srinivasan and Judge Cornelia Pillard, were appointed by President Obama. The third judge, Neomi Rao, is a Trump appointee.
Kash On The Hill
FBI Director Kash Patel will join the administrator of the DEA, the Director of the ATF, and the head of the U.S. Marshal’s Service for budget hearings in the Senate on Tuesday afternoon. It’s typical for the four DOJ law enforcement agencies to do this jointly.
Despite the intricacies of the federal budget, the question on everyone’s mind will likely be whether Patel will be passing out bottles of his special Ka$h Patel, FBI Director, Bourbon.
Atlantic reporter Sarah Fitzpatrick, who wrote the original expose on Patel’s erratic behavior in office, had a new story last week. Fitzpatrick wrote, “it is not unusual for him [Patel] to travel with a supply of personalized branded bourbon. The bottles bear the imprint of the Kentucky distillery Woodford Reserve, and are engraved with the words ‘Kash Patel FBI Director,’ as well as a rendering of an FBI shield. Surrounding the shield is a band of text featuring Patel’s director title and his favored spelling of his first name: Ka$h. An eagle holds the shield in its talons, along with the number 9, presumably a reference to Patel’s place in the history of FBI directors.”
Finally
The administrative stay in the mifepristone case ends on Monday. That means that unless the Supreme Court issues an order regarding whether the injunction should stay in place while the litigation proceeds, the Fifth Circuit’s ban on obtaining the abortion drug via telehealth goes into effect.
Given that the Court virtually disallowed nationwide injunctions last June in Trump v. Casa, it’s difficult to see the legally consistent path to permitting this one to go into effect. And, in the 2023-2024 term mifepristone case, the Court stayed efforts to restrict the availability of the drug from going into effect during the pendency of the lawsuit (before it dismissed it rather than decided the substantive issues, because it found the plaintiffs lacked standing). The smart money would seem to be on similar treatment here, but this is a Court that has been willing to ignore the past to put abortion out of reach for American women, so we will wait and see.
There’s a busy week ahead of us. But Donald Trump is spending the evening on Truth Social, reposting memes about his popularity.
The latest NPR/PBS News/Marist poll shows Trump with just a 37% approval rating; 59% of those polled disapproved of his performance. That’s the worst score this poll has given Trump in either of his terms in office.
Scottie's Playtime 