In recent months, Executive Orders issued by the current Administration regarding gender-affirming care of minors have been the subject of much debate and litigation. The crux of these lawsuits is largely two Executive Orders: Executive Order 14187 (Protecting Children From Chemical and Surgical Mutilation) and Executive Order 14168 (Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government).
Executive Order 14187 makes it the policy of the United States that it will not fund, sponsor, promote, assist, or support the “transition” of a child under the age of 19 from one sex to another. The Executive Order directs each federal agency that provides research or education grants to medical institutions, including medical schools and hospitals, to take steps to ensure that those institutions end the “chemical and surgical mutilation of children.” It also directs the Secretary of the U.S. Department of Health and Human Services (HHS) to take certain regulatory actions regarding Medicare or Medicaid conditions of participation or conditions for coverage to end the provision of those services.
Similarly, Executive Order 14168 states that federal funds will not be used to promote “gender ideology,” meaning replacing “the biological category of sex with an ever-shifting concept of self-assessed gender identity, permitting the false claim that males can identify as and thus become women and vice versa, and requiring all institutions of society to regard this false claim as true.” Gender ideology also includes “the idea that there is a vast spectrum of genders that are disconnected from one’s sex.” The Executive Order directs each federal agency to ensure that grant funds do not promote gender ideology.
In other words, under these Executive Orders, healthcare providers in New York State would be at risk of losing federal funding for providing gender-affirming care to minors.
As a result of the three legal challenges recently filed, however, the current Administration is enjoined nationwide from blocking or pausing federal funding in connection with providing gender-affirming care to minors, including withholding funding from healthcare entities and professionals for providing that care. The preliminary injunction issued in one of the cases, which was filed in federal district court in Rhode Island, has been appealed to the Court of Appeals for the First Circuit.
At the same time, New York State Attorney General Letitia James warns that, regardless of the availability of federal funding, electing to refuse services to a class of individuals based on their protected status, including withholding the availability of services from transgender individuals based on their gender identity or their diagnosis of gender dysphoria, while offering such services to cisgender individuals, violates New York State’s anti-discrimination laws. The New York State Department of Health also issued guidance reminding providers of New York’s prohibition on discrimination based on sexual orientation or gender identity or expression, including transgender status, in healthcare services and coverage.
While the preliminary injunctions remain in place, New York State healthcare providers may continue to provide gender-affirming care to patients under the age of 19 without experiencing a freeze in federal funding. Providers should also understand that although these cases do not prohibit HHS from taking regulatory action to end gender-affirming care, including actions that make changes to Medicare and Medicaid conditions of participation, those actions must comply with certain federal rulemaking procedures which can take several months to carry out. For the time being, providing gender-affirming care to minors does not constitute a violation of those conditions of participation.
Rivkin Radler attorneys will continue to closely monitor the status of these cases and their impact on New York State healthcare providers.
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