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Court of Appeal:
Case Over Transgender Surgery on Minor to Proceed in Court
In High Profile Case Brought by ‘Detransitioner’ Influencer Chloe Cole, Opinion Says Kaiser Hospitals Failed to Establish Binding Arbitration Agreement With Employee, Plaintiff’s Mother, Based on Arbitration ‘Disclosure’
By Kimber Cooley, associate editor
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CHLOE COLE plaintiff |
The Third District Court of Appeal has held that Kaiser Foundation Hospitals failed to establish the existence of an agreement to arbitrate a dispute over the group’s provision of so-called “gender affirming care” to influencer Chloe Cole, who has since rejected her transgender identity and claimed that the procedures—performed while she was in her early teens—have caused her “deep” wounds,” allowing the high profile case to continue in court.
Friday’s opinion declares that the trial judge did not err in dismissing the defendants’ assertion that an arbitration “disclosure” found in health plan enrollment paperwork signed by the plaintiff’s mother, who worked as a nurse for the healthcare giant, sufficed to bind Cole where the notice referenced documents that were either not provided to the court or did not in fact contain the contractual terms regarding alternative dispute resolution.
While those terms were set forth in a separate “Benefits Booklet” and in plan materials that were disclosed, with changes, to participants annually, the court declined to find the purported agreement binding where the only signed arbitration notice failed to refer to those documents by name.
Cole, whose legal surname is Brockman, filed a complaint against Kaiser and several affiliated healthcare professionals in February 2023, asserting claims for medical negligence and claiming that she was placed on a “conveyor belt” of gender affirming care at age 13 after “being exposed to online transgender influencers.”
She has become an advocate against transgender care for minors, having appeared on conservative podcasts and events hosted by Ben Shapiro as well as the late Charlie Kirk.
Allegations in Complaint
In the pleading, she alleged:
“Under Defendants’ ‘care,’ between ages 13–17 years, Chloe underwent harmful transgender transition, specifically, off-label puberty blockers and cross-sex hormone ‘treatment,’ and a radical double mastectomy of her healthy breasts. There is at least one high quality, large scale, 30-year, population-based study that demonstrated that transgender individuals who chemically/surgically ‘transition’ have poor mental health outcomes….The studies that purportedly support positive outcomes for this ‘gender affirmation’ treatment are ‘low to very low-quality studies’….”
She continued:
“Chloe was the victim of Defendants who did not have any interest in taking the time necessary to sit with her and perform the regular, weekly psychotherapy that Chloe needed. Defendants grossly breached the standard of care by pushing Chloe into this harmful experimental treatment regimen without a proper period of psychological evaluation, without evaluating and treating her serious co-morbidities, without providing informed consent, and while actively utilizing emotionally super-charged and false information to derail the rational decision-making process of Chloe and her parents. Defendants were not ‘caring’ for Chloe, they were experimenting on her, and doing so all to their own great financial benefit.”
The plaintiff asserted that she received the so-called gender affirming care at Kaiser facilities beginning in 2017 and had surgery to remove her breasts in 2020. She claimed that after the surgery, which occurred when she was 15 years old, she began to have second thoughts about the procedures.
Motion to Compel
In October, the defendants moved to compel arbitration, pointing to electronic enrollment forms signed by Cole’s mother shortly after she was hired by the healthcare giant in 2004 and again in 2020 when her plan changed. Both contained a “disclosure” indicating that an arbitration provision covered “any claim for medical or hospital malpractice.”
However, both notices said that the “full” arbitration provision was contained in an “evidence of coverage document,” which the defendants did not include in the 500 pages of plan materials submitted to the court.
The defendants instead pointed to a “Benefits Booklet” relating to the 2020 plan, which did set forth the full terms of a purported arbitration agreement, as well as a 2017 healthcare plan membership document containing similar provisions.
San Joaquin Superior Court Judge Robert T. Waters denied the motion to compel, finding that the defendants had not met their burden to show the existence of an agreement to arbitrate. He wrote:
“While the terms of the…agreement may be valid in that they do not run afoul of any applicable state or federal law, this Court is nonetheless faced with the…fundamental problem….[that] [t]here is no evidence that Plaintiff actually agreed to them.”
Friday’s decision, authored by Justice Elana Duarte and joined in by Acting Presiding Justice Harry E. Hull Jr. and Justice Ronald B. Robie, affirms the order.
Duarte acknowledged that public policy favors contractual arbitration but said “arbitration is a matter of contract and a party who has not agreed to arbitrate a controversy cannot be compelled to do so.” Addressing whether the defendants had established the existence of such an agreement, she wrote:
“On this record, we discern no basis for reversal. Defendants did not submit a copy of any arbitration agreement containing the signature of plaintiff’s mother…. Instead, defendants submitted only evidence showing that plaintiff’s mother signed health care enrollment forms in 2004 and 2005 for the…union health care plan and completed an online enrollment form in 2020 for the self-funded health care plan. While each of those enrollment forms contained an arbitration disclosure, they all stated or indicated that the ‘full arbitration provision’ was contained in a separate document—e.g., evidence of coverage, service agreement, summary plan description. None of those respective documents…were provided to the trial court.”
The jurist noted case law establishing that a party seeking arbitration can meet its initial prima facie burden as to the existence of an agreement by attaching a copy of the signed contract, but opined:
“[W]hile defendants’ petition to compel arbitration stated verbatim the language of the arbitration provision contained in the 2017 evidence of coverage document and the arbitration provision contained in the 2020 Benefits Booklet, the petition did not state verbatim the ‘full’ arbitration provision in the specific documents referenced in the…enrollment forms completed by plaintiff’s mother….And notably, as the trial court observed, defendants concede that the terms of the arbitration provision in the relevant yearly membership agreements changed over time. Under the circumstances presented, the trial court did not err in denying the petition to compel arbitration.”
Disclosure Alone
Rejecting the defendants’ assertion that the arbitration disclosure alone “suffices to require Plaintiff to arbitrate her claims,” Duarte remarked:
“Because these conclusory contentions are not supported by citation and application of pertinent authority showing how and why the trial court erred, defendants have failed to carry their burden to affirmatively demonstrate reversible error.”
She declined to address the contention that the union representing the plaintiff’s mother could agree to arbitrate on her behalf relating to the first healthcare plan at issue, saying “defendants never made that specific argument in their petition to compel arbitration or in their reply papers” and did not raise it “in their court-ordered supplemental brief.”
Duarte declared: “In sum, we conclude defendants have not carried their burden on appeal to affirmatively demonstrate reversible error. Defendants have not shown that the evidence presented in the proceedings below required the trial court, as a matter of law, to find that a valid agreement to arbitrate the controversy existed.”
The case is Brockman v. Kaiser Foundation Hospitals, 2025 S.O.S. 2523.
Cole’s complaint was prepared in part by Harmeet Dhillon, now serving as the U.S. assistant attorney general for the civil rights division under President Trump.
In January, the president signed an executive order seeking to end gender-affirming medical treatments for anyone under the age of 19. The order directs that federally-run insurance programs exclude coverage for such procedures and calls on the Department of Justice to enforce the restriction.
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