Advocates are encouraging members of the public to weigh in during the public comment period for the proposed new rules.
On December 18, the Trump administration announced two proposed rules which would greatly restrict access to gender-affirming care for transgender youth. One would prohibit most hospitals that receive Medicaid and Medicare funding from providing gender-affirming care to transgender people under the age of 18; this would apply to hospitals nationwide, even in states where this care remains legal and protected.
The second rule would prohibit federal Medicaid or CHIP funds from covering this care for youth. In a highly unusual move, Robert F. Kennedy Jr., secretary of the Department of Health and Human Services, issued a “declaration” on the same day, titled “Safety, Effectiveness, and Professional Standards of Care for Sex-Rejecting Procedures on Children and Adolescents,” which stated that gender-affirming care is “neither safe nor effective.” The proposed rules and the declaration were widelyby leading medical organizations, including the American Academy of Pediatrics and the Children’s Hospital Association, as setting “a dangerous precedent” by allowing the federal government to “determine which patient groups deserve care.” On January 6, 22 states filed a motion for summary judgment in their legal challenge to Secretary Kennedy’s declaration, and later reached an agreement with the administration to pause funding threats against providers; the agreement will last at least until the spring. The proposed rules are not binding law, and must go through a lengthy regulatory process, including a 60-day public comment period, before they go into effect. In the meantime, health care providers can continue to offer this life-saving and essential care, which is supported by every major medical association in the country, including the American Medical Association and the AAP. In addition to the legal challenges brought by the state attorneys general, the ACLU is preparing to take legal action if the administration moves forward with these rules. “It’s important that people not just react to public statements and announcements from this administration because it’s all too often not actually based in legally grounded authority and the courts, and advocates are taking steps to ensure that rule of law is complied with,” said Jennifer L. Levi, senior director of transgender and queer rights at GLBTQ Legal Advocates & Defenders. “This is an administration that operates on misinformation. The cumulative effect of the echoing of the threats is certainly creating more fear and concern. The reality is that there are number of providers and hospitals and health care systems that are strenuously opposing the efforts by the federal government to shut down care.” The rule prohibiting hospitals that receive federal Medicaid and Medicare funding from providing gender-affirming care would affect most hospitals nationwide. The restrictions would apply to gender-affirming clinics if they are connected to a hospital, including at off-campus locations. Since the rules apply to the institution, not individuals, they would impact all patients, even those with private insurance or other coverage, or those paying out of pocket. Although these hospitals would be prohibited from providing puberty blockers, hormone therapy, and surgery specifically for gender-affirming care, these same medications and procedures would remain available in some circumstances, such as to treat delayed or premature puberty, premature ovarian failure, cancer, and intersex conditions.KFF , a nonpartisan health policy organization. “It’s really putting these health care organizations and hospitals in a horrible position where they are being forced to choose between providing medically necessary care that their trans patients need, patients and families they’ve been working with for years,” and remaining financially viable, said Kellan E. Baker, senior advisor for health policy at Movement Advancement Project, a think tank. “The medical consensus around this care has not changed. The only thing that has changed is the federal government now being willing to bully children’s hospitals and threaten them. The Trump administration cannot unilaterally declare that this care is illegal. But what it can do is wield the threat of federal financial support, which is the thing that really makes it possible for a lot of these children’s hospitals, other types of hospitals, and health care organization to stay open and serve patients.” Already more than half of the states have limited youth access to gender-affirming care, said Lindsey Dawson, director of the LGBTQ health policy program and associate director of the HIV policy program at KFF. “This really targets the states who are continuing to protect access. It could potentially be limiting care at these larger, multi-disciplinary care settings where you might have a range of different providers working together to provide whole-person, best-practice care in a really integrated way. It could also impact the ability to do research if these centers are closed down and patients aren’t being seen, which of course, it makes it very difficult to understand their experiences.” Advocates said that these rules, if enacted, could mean restrictions in access to gender-affirming care for trans adults as well as other types of health care. “This is setting a horrible precedent that the government can eliminate any type of medical care it wishes without any medical justification for doing so,” said Shannon Minter, legal director at the National Center for LGBTQ Rights. “It’s a Trojan horse in that they’re attacking this kind of health care because they think it will not elicit widespread public opposition. may look like nothing more than an attack on a small group of people, but it’s so part and parcel of a larger attack on our health care system. This is tied to the announcement that HHS is drastically changing its recommendations for childhood vaccines that has alarmed the entire medical community. I hope people can connect the dots, and I think the government wants people to get used to losing health care. They are really trying to dismantle the public health system.” Families with transgender children are scrambling to figure out what do if these rules go into effect; some have already relocated to states without bans on gender-affirming care or left the country altogether since Trump’s re-election last year. “Even if you can overlook the humanity of this and your family is not in this culture war, I don’t understand how people can overlook the idea that they are coming for them next,” said a mother of a transgender teen in Alaska, who urged everyone to stand up against these proposed rules, even if they aren’t personally impacted. Transgender youth are “the low-hanging fruit, the easiest group of people to target and villainize. But once they have successfully made inroads here, they’ll just keep coming for other groups of humans. Eventually will affect and you have to stop it before it gets to you because then it’s too late. So, listen to trans people.”
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