This article was sourced from nfp.com

 

On January 28, 2025, the Trump administration issued Executive Order 14187, which declares that it is the policy of the United States not to “fund, sponsor, promote, assist, or support” gender transition for people under 19, which includes 18-year-olds who are legal adults in the states where they reside. Among other things, the order requires federal agencies, such as HHS, to take all appropriate actions to end the “chemical and surgical mutilation of children,” including regulatory and sub-regulatory actions (which could include amending or repealing regulations that administer and enforce Section 1557 of the ACA). The order also directs federal agencies to “immediately take appropriate steps to ensure that institutions receiving Federal research or education grants end the chemical and surgical mutilation of children.”

Pursuant to the executive order, HHS rescinded its guidance on gender-affirming care on February 20, 2025. This guidance stated that Section 1557 of the ACA prohibits discrimination based on gender identity in federally funded healthcare settings and that gender dysphoria might qualify as a disability under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. The guidance also emphasized that healthcare providers and other covered entities cannot disclose protected health information about gender-affirming care without patient authorization, except in limited circumstances where explicitly required by law. When rescinding this guidance, the agency cited recent court rulings that called into question the notion that Section 1557 extends to gender identity and questioned whether gender dysphoria is a disability under the Rehabilitation Act.

The order’s direction that agencies take steps to make sure that recipients of federal funding are not engaging in the “chemical and surgical mutilation of children,” coupled with a previous executive order prohibiting federal funds from being used to “promote gender ideology” (as discussed in an article in the January 28, 2025, edition of Compliance Corner), provided the basis of a case filed in a federal district court in Maryland. The plaintiffs in the case include transgender children under the age of 19 who stated that medical institutions that were treating them were now no longer doing so because of these executive orders. They argued that the orders violate the separation of powers, conflict with statutory law, and violate the Equal Protection component of the Fifth Amendment. Although they sought a permanent injunction against the administration, they also wanted a temporary restraining order because the orders were causing them immediate harm.

On February 14, 2025, the Maryland court issued a restraining order, concluding that the plaintiffs were likely to succeed on the merits of the case. Determining that the plaintiffs were from all over the country, as well as acknowledging the constitutional issues at play in the litigation, the court applied the restraining order nationwide.

Employer Takeaway

These executive orders are affecting the gender-affirming care provided by medical institutions by both stopping federal funds and directing agencies to take action to make such care difficult if not impossible. That said, it is difficult to say how this executive order will impact group health plans. The restraining order is temporary, and although the court determined that the plaintiffs were likely to succeed on the merits of their case seeking a permanent injunction, there is no guarantee that the case will ultimately succeed. In addition, at this time, it is not known how federal agencies will respond to the executive orders. Employers with questions concerning plan coverage for gender-affirming care should consult with their employee benefits counsel for guidance.

 

This information is not meant to be legal advice and is for consultative purposes only. Please contact Valerie Bruce Hovland, Salus Group’s V.P. of Compliance at [email protected] if you need additional information.