A federal judge in Oregon said he is reversing a declaration late last year by Health Secretary Robert F. Kennedy Jr. that said gender-affirming care for transgender youth did not meet medical standards.
The Confederation of States and DC immediately sued Kennedy over this declaration, accusing him of overstepping his authority. Regulation of drugs is largely left to the states, and federal rules are subject to a public notice and comment period.
Trump administration targets hospitals in massive effort to end gender-affirming care
The Department of Justice, which represents HHS, pushed back against these claims, arguing that President Kennedy’s declaration was simply an expression of his opinion without the force of law.
But at the end of Thursday’s oral argument, Judge Mustafa T. Kasbai said he sided with the plaintiffs. Kennedy’s declaration “significantly changed how the standard of care even applied to gender-affirming care, but there is no standard of care that could be applied in plaintiff states even considering the provision of gender-affirming care,” he said. A formal written decision is expected to be announced soon. Mr. Kasbai will also consider requests by countries to suspend implementation of the Declaration or substantially similar policies.
In December, federal health officials proposed two rules that would withhold federal funds related to gender-affirming care for transgender youth. If these rules are finalized, they will likely have significant financial implications and legal challenges for healthcare organizations across the country. But experts said the accompanying declaration, which purports to “supersede” state and national standards of care, could have broader potential implications.
The report states that “gender-denial treatment for children and adolescents is neither safe nor effective as a treatment for gender dysphoria” and “does not meet accepted medical standards.”
Several states now include gender-affirming care in their Medicaid programs, which are paid for with federal funds, according to court documents. The declaration and proposed CMS rule would make that impossible, and would also conflict with several Democratic state laws that prohibit the exclusion of this care from state Medicaid programs.
Oregon State Attorney Allie Boyd, who represents the states, noted that at least 17 hospitals have already been referred to the HHS Office of Inspector General for investigation under the declaration, which has resulted in many hospitals discontinuing providing gender-affirming care to young people. An investigation could result in a provider being excluded from the Medicare or Medicaid programs, which “effectively amounts to a financial death sentence,” Boyd said.
A declaration from the federal secretary is rare. The Department of Health and Human Services primarily uses it to declare public health emergencies.
Justice Department attorney Kathryn Alkire argued Thursday that the declaration merely expressed President Kennedy’s opinions and did not exercise any authority. “This proclamation does not change the process by which OIG conducts exclusion proceedings,” she said. “It does not create binding standards.”
But Kasubai was not convinced.
“The declaration itself is not just an opinion,” he said. “When the government suggests that Secretary Kennedy has not invoked any authority and therefore I have no authority to consider issuing an opinion, that is a kind of reflexive and inconsistent logic.”
As the government has argued in an effort to downplay the legal effect of the declaration, the declaration is just one of the factors that the HHS Inspector General may consider when determining whether to exclude a health care provider from Medicare or Medicaid.
“There’s a theme of breaking out of the status quo and seeing what other people do,” Kasbai said of the cases he has presided over in the world of administrative law. “And it’s not a system or method that emphasizes the rule of law.”
