Throughout the past decade, the Drug Enforcement Administration (DEA) sought to encroach on patients’ privacy by accessing their prescription records without a warrant. Transgender men fought back in court against the federal agency’s probing into state Prescription Drug Monitoring Programs (PDMP), which were originally created to prevent opioid diversion. As a result, a district judge ruled the practice unconstitutional.
But the DEA seems to be at it again—pursuing a new in-house software that would allow drug-war agents to monitor the vast majority of controlled prescriptions, including those for the testosterone used by transmasculine people who are medically transitioning.
As the Department of Justice, of which the DEA is a subagency, has legally attacked trans women, the DEA’s renewed interest in wide-scale patient surveillance could leave trans people uniquely vulnerable to state abuse.
PDMPs proliferated across the United States as the overdose crisis worsened over the past two decades. Patients’ prescription records became tools for DEA investigations. To access them, the DEA used administrative subpoenas—a controversial power bestowed upon the federal agency by the Controlled Substances Act that doesn’t require a judge’s green light, unlike a warrant.
In 2013, two anonymous transgender men from Portland, Oregon joined, with the representation of the American Civil Liberties Union (ACLU) of Oregon, a lawsuit filed by the Oregon Prescription Drug Monitoring Program (OPMDP) to prevent the DEA from obtaining prescription records like their own. Both feared that their testosterone prescriptions could be scrutinized by the DEA for no legitimate reason. The ACLU did not respond to Filter‘s request for comment.
If he were to be investigated, he feared he would have been harassed on the grounds of his gender identity.
John Doe 4 worried he’d “come under suspicion” because of “the recent media attention on illegal steroid use in sports” and his belief that “law enforcement is more aggressively targeting steroid users,” as he wrote in a court document. If he were to be investigated, he feared he would have been harassed on the grounds of his gender identity.
In a similar vein, John 2 was wary of getting caught up in an anti-diversion crackdown. Because the “quantity of testosterone dispensed to me sometimes varies widely, from small bottles containing a three-or four-week supply to large bottles containing a 20-week supply,” he wrote in a different document, “law enforcement might think that I am using testosterone for an illicit purpose.”
As a result of OPMDP v. DEA, the lawsuit in which the two men intervened two other patients and a physician, a judge from the District Court of Oregon, Portland Division found the DEA’s use of administrative subpoenas to violate the Fourth Amendment’s constitutional protection against unreasonable searches and seizures. The sensitivity of transgender medical information shaped his opinion: “It is difficult to conceive of information that is more private or more deserving of Fourth Amendment protection.”
In contrast, the DEA lawyers had argued that Oregon patients “do not have a constitutionally protected privacy interest under the Fourth Amendment in their prescription medical information.”
Less than two years after the 2014 Oregon decision, the DEA was still trying to pry into PDMP records. In 2016, agency lawyers petitioned the US District Court of Utah, Central Division to enforce one of their administrative subpoenas. Once again, the ACLU—this time Utah’s chapter—intervened with the inclusion of, among others, an LGBTQ advocate who voiced the concerns regarding trans men’s privacy.
“Information about the quantity and frequency of a patient’s testosterone prescriptions is private and highly sensitive,” wrote Troy Williams, executive director of Equality Utah, in his brief submitted to the 2016 DEA v. Utah Department of Commerce case. “Not only does this information reveal one’s transgender identity and diagnosis of gender dysphoria, but dosage information can also reveal the status and stage of one’s transition.”
The privacy infringement could prove prohibitory for trans men seeking above-board, medically necessary care, said the advocate. “If the DEA were allowed to obtain prescription records from the [Utah Controlled Substance Database (UCSD)] without a warrant, many transgender men would be fearful of being investigated or harassed without reason,” Williams warned. “The fear of unjustified disclosure of sensitive information about gender identity and medical treatment could deter some men from seeking medical care.”
The year 2017 was bad for trans patients—as well as all other patients—but good for the DEA. The Utah district court judge ordered the Utah state agencies operating the UCSD to comply with the DEA’s subpoena. Just a month prior to that, the Ninth Circuit Court of Appeals reversed the Oregon district court’s 2014 decision.
In 2020, the DEA is looking to acquire technology that could make obsolete the state-by-state liaising. A September request for proposals (RFP) reveals that the DEA wants a software that enables its agents to have “unlimited access” to more than 85 percent of all controlled-substance prescription records at the patient level. Though the immediate data available would be de-identified, the DEA stipulates in the RFP that the contractor must be able to comply with an administrative subpoena seeking personally identifying information within three business days.
The characteristics of interest to the DEA uniquely implicate trans patients.
At the very least, the Pharmacy Prescription Data software, as it’s called in the RFP, poses similar threats to trans patients as invasion of state PDMPs did: potential outing and resulting abuse. But it would also offer immediate access to de-identified patient characteristics and behaviors for which the DEA once had to serve a subpoena.
The characteristics of interest to the DEA uniquely implicate trans patients. Take the common provision of the “gender” category: It seems a patient on testosterone would be outed as trans if their legal gender is still listed as female. Even “age group” could have transphobic consequences in some contexts: In February, far-right Idaho state legislators introduced legislation—later blocked—to make prescribing HRT to trans teens a felony.
All the while, trans patients’ other prescription records would be subject to the same scrutiny. That includes those for stigmatized medications, like the opioid use disorder medication buprenorphine, that are gate-kept by stringent prescribing requirements.
The possibility of a new DEA prescription surveillance program could exacerbate extant barriers and issues colored by structural racism and classism. When the COVID-19 crisis first got underway, and care providers were limiting services and historic numbers were losing employment-based health insurance, some trans people reportedly turned towards hormones sourced from peers and comparatively cheaper grey-market pharmacies. The quality of medications from these sources can be questionable, putting their health at risk.
Transgender men’s history of legal advocacy against PDMPs is a crucial lesson for harm reductionists: that prescription surveillance does not only impact cisgender pain and opioid use disorder patients—and that resistance to the DEA’s new efforts must learn from past struggle and account for the community of people behind it.