A federal policy expert weighs in on Trump's efforts to stifle gender-affirming care for Americans under 19
The Conversation U.S. interviewed Elana Redfield, federal policy director at the Williams Institute, an independent research center at the UCLA School of Law dedicated to studying sexual orientation and gender identity law. She describes the aims of the executive order, how much weight it carries, and how it should be understood in the broader context of legal battles over access to gender-affirming care.
What's the scope of the executive order?
Twenty-six states have already restricted gender-affirming care for minors or banned it outright. So the order seeks to extend restrictions to the rest of the country using the weight of the executive branch.
However, it's not a national ban on gender-affirming care for minors. Instead, it's directing federal agencies to regulate and restrict this form of care.
That being said, federal agencies have a tremendous impact on American life. Trans kids rely on publicly funded health insurance programs such as Medicaid and TRICARE, which is administered to the children of active duty service members via the Department of Defense. And a big part of the executive order is directing the federal agencies that administer these programs to review their own policies to ensure that they are not supporting gender-affirming care for minors.
So what we're really seeing is the federal government trying to erect barriers to kids accessing this care.
Does the executive branch have the authority to unilaterally ban federal funding of certain medical treatments?
The answer is a little mixed. A president might be able to suspend or put a temporary pause on funding a particular type of treatment or service. But the actual parameters of a program – and how agencies should implement them – are determined by Congress and, to some extent, by the courts.
Ultimately, the president can only take actions in ways that are designated by the Constitution, or through some specific power that Congress has granted to the executive branch. I don't see that authority granted for a lot of what's contained in this executive order. But many of these directives will probably be litigated in court, where the president will likely argue that he has the power to direct agencies to do all they can to put a halt to gender-affirming care for minors.
Do private health insurers fall outside the scope of this executive order?
On the surface, yes. But it's easy to see how directives from the executive branch can touch broader components of the country's health care system, including private hospitals and private health insurance.
For example, Section 1557 of the Affordable Care Act is a nondiscrimination provision. It says there can be no sex discrimination when it comes to approving health care treatments. This has been interpreted to mean that health insurance plans receiving federal funding cannot deny a policyholder gender-affirming care. However, this interpretation has been blocked by a federal court.
The question of whether this definition of sex discrimination encompasses gender identity is currently playing out in the courts. For example, there's a pending U.S. Supreme Court decision regarding a Tennessee law banning gender-affirming care for minors. Should the Supreme Court determine that Tennessee is able to ban gender-affirming care for minors, it's possible to see how this could impact private health insurance coverage for gender-affirming care.
What else stood out to you from the executive order?
The executive order directs the Department of Justice to discourage doctors and hospitals from administering gender-affirming care to minors, characterizing it as genital mutilation, which is a heinous-sounding offense. Even though this is an inaccurate comparison, it could have a chilling effect even in states where this form of care is legal.
The order also contains a provision that asks Congress to extend the statute of limitations for gender-affirming care, so that someone who received gender-affirming care as a minor and decides they're not happy with it decades later can sue their doctor. Some states have already extended the statute of limitations to 30 years for gender-affirming care.
Again, this could have a chilling effect in states where the care is legal. What doctor or hospital would want to expose themselves to this risk?
Of course, these two elements constitute directives from the executive branch, but we don't know how they'll be enforced. They do reveal, however, some of the ways in which the administration plans to direct its efforts.
Before Roe v. Wade was overturned, federal funding of elective abortion had been restricted for decades under the . You can't receive coverage for an abortion under a Medicaid plan, for example. Do you see this executive order as Trump trying to simply enact – via fiat, of course – his own version of the Hyde Amendment, but instead applied to gender-affirming care for minors?
I think there's a key difference between the two. The Hyde Amendment, which has been repeatedly reenacted by Congress, prohibits federal funding of abortion care, but it doesn't prohibit states from allowing or permitting abortion. It's always operated as a sort of compromise: It says providers can't use federal funding for an abortion, but they can use their own funding to administer abortions – and oh, by the way, they can still receive federal funding for other health services.
This executive order, on the other hand, takes a much more uncompromising position: It tells agency heads to stop directing any and all federal funds to institutions that research or provide gender-affirming care.
Again, it's important to remember that executive orders aren't established policy. They're simply directing agencies to craft certain policies and encouraging lawmakers to enact legislation.
So far, much of the legislation restricting gender-affirming care – whether it's at the state level or in the executive branch – has centered on minors, or individuals under 19. Are there any threats to gender-affirming care for adults?
Only one state, Florida, has enacted a law that specifically regulates gender-affirming care for adults. That law basically sets some compliance standards and restricts who can prescribe the care. Florida also banned the use of state funds for gender-affirming care for everyone, adults and children. So that means, for example, those who are incarcerated in state prisons can't receive gender-affirming care.
Florida isn't the only state that has enacted a state funding ban. Depending on your insurance, this could mean you're forced to pay out of pocket for your procedures and treatment, which can be prohibitively expensive.
What are you going to be watching for in the coming weeks?
I'm sure someone's going to sue to challenge the order. The problem, though, is that an executive order is an expression of policy ideas. You need something to actually happen before lawyers and activists can react to it. So I'll be tracking federal agencies to see how they specifically try to enact some of these directives.
Is there anything else you'd like to add?
This executive order contains language that characterizes the science around gender-affirming care as junk science. It's repeatedly described as chemical and surgical mutilation, or as maiming and sterilizing kids. There's talk of rapid-onset gender dysphoria, which has been discredited.
So it rejects the idea that gender-affirming care has health benefits, even though there's robust, extensive evidence supporting access to gender-affirming care. Self-reporting by transgender individuals is overwhelmingly positive: 98% of trans people who had hormone therapy said it made their lives better, according to the 2022 U.S. Transgender Survey.
There are also rigorous standards of practice, including for how you support and treat minors, that are intended to prevent overprescription or overutilization of services.
In other words, there are already barriers in place and checks and balances for minors if they want to access gender-affirming care.
This article is republished from The Conversation, a nonprofit, independent news organization bringing you facts and trustworthy analysis to help you make sense of our complex world. It was written by: Elana Redfield, University of California, Los Angeles
Read more:
Trans kids in the US were seeking treatment decades before today's political battles over access to health care
Federal threats against local officials who don't cooperate with immigration orders could be unconstitutional − Justice Antonin Scalia ruled against similar plans
Striking a balance between fairness in competition and the rights of transgender athletes
Elana Redfield works at an organization that has received private, state or federal research grants.
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