Judge will vacate Kennedy’s declaration on gender-affirming care
A recent ruling by a U.S. district judge in Oregon has brought attention to the issue of gender-affirming care for young transgender individuals. The judge announced plans to vacate a declaration made by Health Secretary Robert F. Kennedy Jr. late last year, which stated that gender-affirming care does not meet medical standards of care.
The declaration sparked immediate backlash, with a coalition of states and D.C. suing Kennedy for overstepping his authority. The regulation of medicine is primarily under the jurisdiction of states, and any federal rules must undergo public notice and comment periods.
The Department of Justice, representing HHS, argued that Kennedy’s declaration was merely an expression of opinion and did not carry the weight of law. However, Judge Mustafa T. Kasubhai sided with the plaintiffs, stating that the declaration had effectively eliminated any standard of care for gender-affirming care in the plaintiff states. A written decision is forthcoming, and Kasubhai will also consider the states’ request to halt the implementation of the declaration or any similar policies.
The declaration, which aimed to supersede state and national standards of care, could have far-reaching consequences if enforced. It claimed that “sex-rejecting procedures for children and adolescents are neither safe nor effective as a treatment modality for gender dysphoria,” and therefore do not meet recognized standards of health care.
Several states currently include gender-affirming care in their Medicaid programs, funded by federal dollars. The declaration and proposed CMS rules would jeopardize this funding and conflict with state laws that prohibit the exclusion of such care from Medicaid programs.
According to court documents, at least 17 hospitals have already faced investigation by HHS’s Office of Inspector General based on the declaration. This has led many providers to cease offering gender-affirming care to youth, as exclusion from Medicare and Medicaid programs could have dire financial consequences.
Declarations from federal secretaries are rare and are typically reserved for declaring public health emergencies. The government argued that Kennedy’s declaration was not authoritative, but Kasubhai disagreed, stating that the declaration had legal implications.
The judge criticized the government’s approach, suggesting that it was a tactic to test boundaries without regard for the rule of law. As the legal battle continues, the future of gender-affirming care for young transgender individuals remains uncertain.
