ANALYSIS: Beyond Transgender Care EO, Nationwide Patchwork Grows

Executive Order 14187, which aims to limit gender-affirming care for minors, may be off the table as challenges move through the court system. But there has been a surge of other developments and changes to the status of this care, at both the state and federal level. From a Supreme Court decision allowing state-level bans to federal agency action curtailing the practice, attorneys advising providers on the issue of gender-affirming care for minors need to be alert to how this ever-changing landscape will impact their clients’ decisions on the provision of care.

Skrmetti and State Developments

Many state-level developments have occurred since President Trump issued E.O. 14187. On June 18, the Supreme Court upheld Tennessee’s law restricting certain types of gender-affirming care for minors in US v. Skrmetti, finding that the state’s ban does not violate the Equal Protection Clause. Since 2022, there has been an increase in state legislation curbing gender-affirming care for minors, and subsequently, there have been numerous court challenges to state laws, like Skrmetti, with a range of outcomes.

The Supreme Court’s decision will provide a baseline level of clarity and consistency for state bans, but there is still potential for confusion among practitioners, and additional new developments that they still should pay attention to.

Although Tennessee’s ban was upheld, Skrmetti still may not provide full clarity for state level bans. Not every state ban looks the same, and practitioners need to be aware of the specifics of each state law and how those laws might change. For example, West Virginia’s ban originally provided an exception for the provision of puberty blockers and hormone therapy for individuals experiencing severe gender dysphoria, but those exceptions were removed July 11.

In addition to bans of gender-affirming care to minors, a small number of states, like Texas,Kentucky, and Utah, have seen bills aiming to prohibit the use of public funds toward gender-affirming treatments for all individuals, regardless of their age. While these bills saw little progression, providers should take note that prohibiting public funding is a method that state legislatures are seeking to use to regulate gender-affirming care, particularly as it mirrors the federal funding provisions in E.O. 14187.

Skrmetti has provided a level of guidance to what states can do to prohibit gender-affirming care, but its scope is limited to bans on certain types of treatments for minors. More general bans and limitations on state funding remain untested in court. As many gender-affirming care providers rely on public funding, it is crucial that attorneys advising such clients remain aware of potential funding prohibitions at a state level, along with specific limitations and exceptions on care in a provider’s state.

Executive Order and Federal Developments

In addition to E.O. 14187, executive agencies have taken action regarding gender-affirming care since the beginning of the Trump administration.

The Centers for Medicare & Medicaid Services requested information from providers on their policies and practices regarding their delivery of gender-affirming care to minors, including billing codes utilized for and revenue generated from such care, for the purpose of evaluating adherence to standards. CMS’s request follows trends from E.O. 14187 and proposed provisions from the recent tax bill. (The provisions, which were ultimately cut by the Senate parliamentarian, would have prohibited Medicaid coverage of gender-affirming care for minors and adults.)

The Federal Trade Commission hosted a workshop on July 9 focusing on whether there is evidence of “omitted warnings about the risks” or “false or unsupported claims about the benefits and effectiveness of gender-affirming care for minors.”

Much of the current agency action is information-gathering, and with so many government actions facing court challenges, federal developments still are at a preliminary stage.

Considerations Looking Forward

So far. E.O. 14187 has faced two significant challenges in court in PFLAG v. Trump and Washington v. Trump. Deliberations in both cases were paused until the Skrmetti decision, and now that the Supreme Court has issued its ruling, PFLAG and Washington will be important to watch, particularly for practitioners and entities that rely on federal funding and provide gender-affirming care.

In addition to legal and regulatory compliance, financial and insurance considerations will be the paramount concern for gender-affirming care providers in the wake of the Skrmetti ruling and as litigation over E.O. 14187 progresses. Now that the Supreme Court has ruled that states can ban gender-affirming care for minors, providers must be prepared for the potential financial repercussions of non-compliance or perceived non-compliance with such laws.

For example, many providers who provide gender-affirming care to minors also treat conditions like endometriosis and precocious puberty because the treatments are very similar. To avoid allegations of providing gender-affirming care to minors, as has happened to Texas providers, it is important that providers diligently and properly document and code the purposes of the treatment they are providing.

Another issue that may arise post-Skrmetti involves out-of-state care. Patients who live in a state that bans gender-affirming treatment for minors can be expected to travel to get treatment in a state where it is legal—similar to patients who have traveled to get abortions since the Dobbs ruling. Providers in states that allow gender-affirming care for minors should remain aware of what treatment is allowed in their state, potential state legal protections for gender-affirming care, and laws of home states of patients who travel to them to receive treatment.

When President Trump first signed E.O. 14187, attorney generals of several states signed a joint statement stating that entities that ceased providing gender-affirming care to minors pursuant to the order could be at risk of violating state law. This potential conflict between state and federal law could create a complex legal landscape for gender-affirming care providers, underscoring why it remains crucial for their attorneys to be up to date on the status of gender-affirming care on a local and national level.

Other analyses of the executive orders featured in the report cover AI regulation, immigration, DEI, and disparate impact liability (publishing soon).

Bloomberg Law subscribers can find related content on our In Focus: Gender Identity page.

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