Executive Order Seeks to Outlaw Gender Affirming Care for All Under Age 19 in U.S.

On January 28, 2025, President Trump issued an Executive Order (EO) —titled —directing all Executive Branch agencies to work toward shutting off access to gender affirming care (GAC) nationwide for all children and youth under the age of 19.

While the EO does not immediately change any rules or regulations, it announces as “policy of the United States that it will not fund, sponsor, promote, assist, or support the so-called ‘transition’ of a child from one sex to another, and it will rigorously enforce all laws that prohibit or limit these destructive and life-altering procedures.” Such care already has been banned in numerous states, and the EO is designed to bring the ban nationwide, including in states with laws designed to protect care for transgender children and youth. This Executive Order follows the Trump Administration’s asserting there are only two genders, and they are immutable and determined at-birth and its directing the U.S. Military to change its policies to reflect its claim that trans individuals are “inconsistent” with military readiness.

The Executive Order has five key directives as summarized below. The EO directs the executive agencies to issue a report to the White House on the progress they are making to implement the EO within 60 days.

We will continue to follow developments closely as we expect that many of the agencies’ attempts to implement the EO will be challenged in the courts as inconsistent with statutory and constitutional constraints. Many of the EO directives will intersect with state laws that either ban such care or that are designed to protect the right of providers to offer it. This may raise questions of federalism as the federal government exerts influence over the practice of medicine even beyond federal programs—an area traditionally regulated at the state level.

Stripping Research and Education Grants for Institutions that Provide GAC

• The EO directs all executive agencies to “immediately take appropriate steps to ensure that institutions receiving Federal research and educational grants,” including hospitals and medical schools, stop providing GAC for youth.
• The EO does not cite any legal authority to impose this new condition, nor does the EO explain which specific types of grants would be subject to this condition or when it would be imposed.

Directives to the Secretary of Health & Human Services on Health Coverage, Access and Civil Rights

The EO directs the HHS Secretary to “take all appropriate action” to end GAC for youth, potentially including rulemaking or sub-regulatory actions including in the following areas:

Leveraging Medicare and Medicaid to Preclude Care

• Conditions of participation (COPs) for providers that bill Medicare and Medicaid. To participate in Medicare and Medicaid, health care providers and hospitals must meet “conditions of participation” set by the federal government. Consistent with statements made by then-candidate and president-elect Trump, the EO appears to contemplate changing the COPs so that a provider would be unable to participate in Medicare or Medicaid if they offer gender-affirming care to transgender children and youth – regardless of whether the young person is covered by Medicare, Medicaid, or some other form of insurance. Rulemaking would likely be necessary to implement substantive changes to the COPs, which are generally based on quality or safety criteria.
• Other oversight tools designed to ensure quality of care and patient safety, such as (1) Clinical-abuse or inappropriate-use assessments relevant to State Medicaid programs; and, (2) Quality, safety, and oversight memos (which often go hand in hand with the COPs).
• Conditions of coverage for Medicare and Medicaid services.  The EO does not provide any further clarification. CMS’s authority to expand or restrict coverage under Medicare and Medicaid is subject to a detailed and complex array of federal statutes.
• Mandatory drug use reviews for Medicaid

Coverage under Marketplace plans: Revising the definition of “Essential Health Benefits” to require exclusion of coverage for GAC.

Nondiscrimination, Civil Rights, and Confidentiality:

• Section 1557 of Affordable Care Act. Current rules prohibit discrimination on the basis of gender identity or sexual orientation, including a requirement for plans to cover, and providers to offer, gender-affirming care under certain circumstances (with exceptions for federally protected conscience objections). These Biden-era rules have been blocked in the courts and not yet become effective, and are expected to be repealed under the Trump Administration.
• Confidentiality. “Promptly” withdrawing the Office of Civil Rights’ March 2, 2022 guidance, “HHS Notice and Guidance on Gender Affirming Care, Civil Rights and Privacy,” which outlined confidentiality requirements and civil rights protections in Section 1557 and HIPAA for those seeking GAC.

Clinical Definitions: The Eleventh Revision of the International Classification of Diseases (ICD) and other federally funded manuals, including the Diagnostic and Statistical Manual of Mental Disorders (DSM), Fifth Edition. The diagnostic definitions in the ICD and DSM are a key component of billing and coding for medical services across payers.

Federal Health Coverage for GAC for Youth

• The EO directs TRICARE, which provides health insurance to U.S. military personnel and their families, to “commence rulemaking or sub-regulatory action” to end coverage for GAC for youth.
• The EO directs the health plans for federal employees (FEHB) and postal employees (PSHB) to require carriers in its next procurement to “exclude coverage for pediatric transfer surgeries or hormone treatments.”

Department of Justice Directives

The EO directs the Department of Justice to use its legal authority, including federal criminal law, to discontinue GAC. In particular, DOJ is directed to:

• Prioritize the investigation and prosecution of “female genital mutilation” under existing criminal law (18 U.S.C. § 116). Although not expressly discussed, the EO suggests that DOJ should reinterpret this law to include gender-affirming care for youth assigned female at birth, despite the exemption for procedures “necessary to the health” of the patient done by licensed physicians. The U.S. Constitution generally prohibits the government from enforcing new theories of criminal liability without giving fair notice to the public. It is not clear whether DOJ will issue an additional, more fully explained statement on female genital mutilation, or whether DOJ will take the position that this EO provides sufficient notice.
• Coordinate enforcement of laws against female genital mutilation across the U.S. by, for example, convening state attorneys general.
• Prioritize investigations of those alleged to mislead the public about the side effects of GAC.
• Draft legislation for Congress providing a private right of action to children and parents who have received GAC.
• Prioritize investigations of states that strip custody of parents who oppose GAC for their own children.

Scientific Research

Through the EO, the Trump Administration seeks to redirect research efforts and clinical best practices away from medication- or surgery-based GAC and towards other treatments for youth struggling with gender dysphoria. The EO directs:

• All agencies to immediately rescind or amend policies that rely on the World Professional Association for Transgender Health (WPATH) guidance. WPATH is a 501(c)(3) nonprofit, interdisciplinary professional and educational organization that has established internationally accepted standards of care to promote the health and welfare of trans individuals. The standards are updated and revised as new scientific information becomes available. Version 8 of the WPATH standards was published in 2022. Leading medical organizations (e.g. Endocrine Society and the American Academy of Pediatrics) take WPATH’s guidance into account when creating their own standards of care.
• HHS to publish a literature review within 90 days on best practices for promoting health of children with gender dysphoria.
• HHS to “increase quality of data” to guide practices for improving health of minors with gender dysphoria.

Conclusion

The EO comes as the Supreme Court considers its ruling in United States v. Skrmetti, which is considering the constitutionality of Tennessee’s ban on GAC for minors, and in a political environment in which have imposed bans on provision of hormones and puberty blockers and surgical care for adolescents.

If the directives in the EO come to fruition, GAC for youth nationwide will likely become unavailable, regardless of where they live or what type of health coverage they may have. By restricting federal research and education funds, or by closing off participation in Medicare and Medicaid, these policies may make it financially infeasible for academic medical centers and other providers to continue serving the small fraction of the U.S. population that are transgender. The vast majority of GAC provided to adolescents consists of counseling and mental health services. Although this EO focuses on pharmacological and surgical treatments, it remains to be seen whether future executive actions flowing from this order address the other, more common treatments furnished to transgender youth.

The EO uses the phrase “chemical and surgical mutilation” to refer to medication- and surgery-based treatments for gender dysphoria but clarifies that this term is intended to be synonymous with “gender affirming care.”

An 1.6 million people ages 13 and older—0.6% of the population—identify as transgender in the United States: 1.4% of youth ages 13-17 (~300,000) and 1.3 million adults 0.5% of adults (~1.3 million adults).

Puberty blockers and gender-affirming hormones are rarely prescribed to transgender adolescents. A recent of private insurance claims over the last five years showed that less than 0.1% of adolescents received prescriptions for puberty blockers or hormone therapy. Another on privately insured claims found that there were no gender-affirming surgeries conducted on individuals aged 12 years and younger, and procedures on individuals 12-17 were rare.