Gender Affirming Care Updates: Skrmetti, Federal Actions, State Developments, and Provider Responses
September 12, 2025 • 34 mins
Adam Laughton, Shareholder, Greenberg Traurig LLP, speaks with Jennifer Nelson Carney, Member, Epstein Becker & Green PC, about the current landscape of gender affirming care. They discuss the Supreme Court’s June 2025 decision in Skrmetti; the executive orders, memos, agency activity, and proposed legislation at the federal level; how states are reacting to these federal actions and enacting their own legislation; and how providers are responding. From AHLA’s Physician Organizations Practice Group and Women’s Leadership Council.
Watch the conversation: https://www.youtube.com/watch?v=JlQqrJw0oCk
Learn more about AHLA's Physician Organizations Practice Group: https://www.americanhealthlaw.org/practice-groups/practice-groups/physician-organizations
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Episode Transcript
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SPEAKER_00 (00:00):
This episode of AHLA Speaking of Health Law is
brought to you by AHLA membersand donors like you.
For more information, visitAmericanHealthLaw.org.
SPEAKER_02 (00:17):
Hello, everyone, and welcome to this AHLA podcast.
This is the update ongender-affirming care.
This is a part two from our top10 podcast earlier this year
talking about variousdevelopments in gender-affirming
care in 2025.
(00:37):
My name is Adam Lawton.
I'm a shareholder at KlingbergTarik in Houston, Texas.
My practice focuses on healthcare transactions and regulatory
issues.
I'm also vice chair of thePhysician Organizations Practice
Group for AHLA.
And today we'll be talking withJenny Nelson Carney about
various things that havehappened during the first eight
(01:00):
or nine months of this year withregards to gender affirming
care.
I think we ought to acknowledgethat this area is rapidly
changing.
So with that, I'd like tointroduce our guest today, Jenny
Nelson Carney.
Jenny, can you introduceyourself?
SPEAKER_01 (01:16):
Sure.
Thanks so much, Adam.
As Adam said, I'm Jenny NelsonCarney.
I'm a partner and a healthlawyer at Epstein Becker and
Green, and I'm also chair of theAHLA Women's Leadership Council.
I'm really happy to be here andappreciate AHLA giving us an
opportunity to talk aboutcontinuing developments in the
gender-affirming care space.
SPEAKER_02 (01:39):
Thank you, Jenny.
So we spoke earlier this year,like I said, I believe it was
around March.
It was very early into the newadministration.
And we talked a lot aboutvarious things that were
happening in gender-affirmingcare.
We'll revisit those.
But just to set a basis for thisdiscussion, when we say
(01:59):
gender-affirming care, how wouldyou define that or how should we
define that in this discussion?
SPEAKER_01 (02:06):
Yeah, I'm glad you asked that.
I think it's always an importantlevel setting when you're
discussing gender care fortransgender people, because I
think that there is stillconfusion as to what that means.
And it's important to know thatgender-affirming care is an
umbrella term that covers arange of medical and non-medical
(02:27):
interventions used to supportindividuals where there's a
conflict between theindividual's gender identity and
the gender that they wereassigned at birth.
Most of the public discussion ofgender- or sometimes publicly
it's referred to as gendertransition care, is specific to
surgery and medications,medications like puberty
(02:49):
blockers and hormone therapy.
But it's important to keep inmind that gender affirming care
is much broader than that andincludes things like social
affirmation, which is changes toappearance and names and
pronouns, as well as legalaffirmation, which is changes on
legal documents to those samethings, gender and name.
(03:09):
So clearly some forms of genderaffirming care are easily
reversible, like socialaffirmations, and others such as
the surgical procedures are not.
When we last spoke in ourprevious podcast, we talked a
lot about the fact that most ofthe restrictions on gender
affirming care have been focusedon preventing minors, so the
(03:31):
children, people under 18, fromaccessing gender affirming care.
But we are starting to see someincreasing governmental activity
aimed to restrict gender Andthis continues to be an
important and relevant topic forour healthcare providers because
there are approximately 2.8million people in the United
(03:51):
States, ages 13 and older, whoidentify as transgender.
And that's actually a new datapoint since our last podcast
recording.
We just reviewed a report fromthe Williams Institute at the
UCLA School of Law last month,and 2.8 million is an increase
in the number.
number from what we reported inMarch.
(04:11):
And it's about 1% of the U.S.
population in that age frame.
So it's certainly a significantnumber of people seeking medical
care.
SPEAKER_02 (04:19):
That is a lot of people.
I have not heard that number,but that's actually a tremendous
amount of people when you thinkabout it.
Across the United States, ifthere's that many people,
everybody's going to knowsomeone who's experiencing that
or is who's affected by thesethings that we're discussing so
(04:42):
one of the things that wediscussed quite at length uh
during our previous podcast wasthis uh skirmetti case that was
in front of the supreme courtand i think since we spoke
there's been a decision so doyou want to talk about where
that case went and then what thefallout has been from from that
decision
SPEAKER_01 (05:02):
Sure.
So just as a reminder, theScarametti case was brought by
families of transgender minorsand revolved around the question
of whether a specific Tennesseelaw, which we'll refer to as
Senate Bill 1, violates theEqual Protection Clause of the
14th Amendment of the U.S.
Constitution.
Senate Bill 1 prohibits allmedical treatments intended to
(05:24):
allow a minor to identify withor live as an identity
inconsistent with their sex.
And it also, importantly,prohibits prohibits medical care
to treat discomfort or distressfrom a discordance between their
sex and asserted identity.
And as we discussed on our lastpodcast, the U.S.
(05:44):
Court of Appeals for the SixthCircuit had upheld Tennessee's
ban, upheld Senate Bill 1.
And so then it was appealed tothe Supreme Court.
The Supreme Court has indeedissued a decision in this case.
We got a decision in June, whichjust earlier this summer.
The opinion was by Chief JusticeRobert It was a 6-3 vote, and
the opinion said thatTennessee's law prohibiting
(06:07):
certain medical treatments fortransgender minors is not
subject to heightened scrutinyunder the Equal Protection
Clause of the 14th Amendment andsatisfies rational basis review.
(06:32):
a governmental action as long asit is rationally related to
legitimate government purpose.
And that's what they found here.
So that was a significant case.
It, um, gave significant, um, I,I think that the states that
were, have been marching downthe road to limit gender
affirming care, this was asignal to them that, that those
(06:55):
laws are likely to be upheld asconstitutional.
And we've already seen influencefrom this case, uh, in, um,
Other legal cases, and I'llhighlight one in Arkansas, their
General Assembly had passed alaw to prohibit healthcare
professionals from providinggender transition procedures to
minors and to prohibit thoseproviders from referring minors
(07:19):
for transition procedures.
So even if they were notproviding them, they prohibited
the actual referral saying,okay, well, you can go over here
and get it, even if I can't giveit to you.
So a group of four minors livingin Arkansas, along with their
parents And then several healthcare providers sued to enjoin
enforcement of this law.
The district court ruled intheir favor, finding that the
(07:40):
law violated both the FirstAmendment and the Equal
Protection Clause and DueProcess Clause of the 14th and
issued an injunction.
But then the state AG and themedical board appealed and the
Eighth Circuit, relying in parton the Scrimetti decision we
just discussed, reversed thelower court and upheld the ban
on care.
So we expect to see more caseslike that in Scrimetti.
(08:02):
METI continue to be cited as abasis for decisions.
SPEAKER_02 (08:08):
And one of the other topics I recall is, you know,
even in the very early days ofthe new administration, you
know, starting January 20th, andby the time that we reported,
there had been a lot of signalscoming out of the
administration, a lot of talkabout the ways that they were
(08:28):
going to push back on genderfrom here, push back on
developments in this area.
So what sorts of actions have weseen from the federal government
with regards to togender-forming care.
SPEAKER_01 (08:40):
Well, Adam, buckle up because we have seen a lot of
activity since that time.
I'm going to take us back to ourprevious podcast where we spent
a lot of time dissecting the twoexecutive orders that were
issued in January as they werereally the starting point for
the federal government'sactivities.
And so just to quickly recap, wehad the executive order titled
(09:03):
Defending Women from GenderIdeology, Extremism and
Restoring Biological Truth tothe Federal Government, which
basically said it's the policyof of the U.S.
to recognize just two sexes,male and female, and that those
are not changeable.
And it directed federal agenciesto enforce laws protecting men
and women as biologicallydistinct sexes and to use the
(09:23):
term sex and not gender, andalso prohibited the federal
government from expendingfederal funds to promote gender
ideology.
So that was the one, theDefending Women EO.
And then the other EO, therewere lots of executive orders,
but these were the two that areparticularly relevant to
gender-affirming care.
The second one was titledProtecting Children from
(09:44):
Chemical and SurgicalMutilation.
And this is the one that has themost significant impact on
health care providers.
This executive order directedthe federal agencies to take
appropriate steps to ensure thatinstitutions receiving federal
research or education grants,which most medical schools and
hospitals, that they need to endthe chemical, and this is a
(10:05):
quote, chemical and surgicalmutilation of people under 19
years of age.
So it also turned terminatedcoverage for certain
gender-affirming care.
Government provided medicalbenefits, ordered Health and
Human Services to withdraw itsMarch 2022 guidance on
gender-affirming care, civilrights, and patient privacy, and
to issue new guidance protectingwhistleblowers who take action
(10:28):
related to ensuring compliancewith the EO.
And it also ordered the DOJ, theDepartment of Justice, to
prioritize enforcement of anexisting law prohibiting female
genital mutilation.
So at At the time that werecorded the last podcast, there
was a lot of consternationamongst medical providers.
What does this mean?
Do we have to stop right now?
(10:49):
Are these directives to us?
Are these directives to theagencies?
Which the latter is true,directives to the agencies.
But it was a good indication ofwhat was to come.
And so since that time, we'veseen incredible action from the
White House and agencies.
And we could really spend hoursdiscussing each one and the
(11:10):
impact that they may have, and Iknow I and many healthcare
lawyers have done so, but forpurposes of our podcast today,
since we don't have hours andhours to discuss, I'm just going
to give an overview of theactions that we've seen in a
chronological order just to giveour listeners an idea of what's
been happening.
So on our last podcast, wediscussed that we had started to
(11:32):
see some of the actions.
There was a CMS letter issued tohealthcare providers on March
5th that was quickly followed bya letter from HRSA to hospital
and and a letter from SAMHSA tocolleagues and grantees, all
really reiterating the thingsthat you heard in the EO.
So since that time, we first sawon April 11th, CMS sent a letter
(11:54):
to state Medicaid directorsreminding states that Medicaid
programs have a responsibilityto ensure that payments are
consistent with efficiency,economy, and quality of care,
and to remind states that thereare longstanding federal
Medicaid regulations prohibitingfederal funding for coverages of
services whose purpose is topermanently render certain
(12:17):
populations including childrenincapable of reproducing so
clearly they're focused here oncertain surgical procedures
related to gender affirming carea few days later then health and
human services announced anonline complaint portal so
anyone can just log online tothis complaint portal and report
(12:38):
chemical and surgical mutilationof children And if you look at
it, it requests very specificinformation about healthcare
providers that may be providingthis care, names and addresses
and types of care.
And it was, along with that, HHSpublished guidance to protect
whistleblowers who make suchreports.
(12:58):
So that was pretty significantand certainly of note to
healthcare providers who providecare in this space.
A few weeks later, AttorneyGeneral Bondi issued a memo to
specific agencies heads entitledPreventing the Mutilation of
American Children.
You see the theme that we keephearing from the agencies.
This memo was pretty detailedand included a five-part plan,
(13:22):
which included enforcement ofexisting laws outlying female
genital mutilation, which wasalso referenced in the executive
order.
Second, investigations of theFood, Drug, and Cosmetic Act and
False Claims Act, holdingaccountable medical providers
Thank you so much.
(14:10):
the AG called Junk Science,which was largely the guidelines
from WPATH, which is the WorldProfessional Association for
Transgender Health.
We talked about that a littlebit in our previous podcast.
Fourth was establishing afederal and state coalition
against child mutilation.
And fifth, promoting newlegislation protecting children.
(14:30):
And we're going to talk a littlebit more about that in a minute.
But AG Bondi's memo wasextensive and laid out, here's
where we're going and we haveindeed seen agency action for
each part of this five-part memothat she said this is what DOJ,
where we're headed.
(14:52):
So very significantly at thebeginning of May, Health and
Human Service issued a lengthyreport.
It was over 400 pages entitledTreatment for Pediatric Gender
Dysphoria, Review of Evidenceand Best Practices.
And the report really challengedthe validity of the existing
gender affirming care model ofcare, suggesting that it lacks
(15:15):
scientific and medical support,and spent a lot of time
discussing what they deemirreversible risks associated
with pediatric medicaltransition.
The report also recommendedpsychotherapy as a non-invasive
alternative to endocrine andsurgical interventions for the
treatment of gender dysphoria.
But I will say that the reporthas received really significant
(15:38):
criticism for having both Bothanonymous authors, which you
don't typically see in a reportlike this, and not being subject
to peer review, which is areally surprising factor.
So the report really has comeunder some significant scrutiny.
Later in May, we saw a memo fromthe Deputy Attorney General Todd
(16:01):
Blanch focused on use of theFalse Claims Act against those
who defraud the United States bytaking its money while knowingly
violating civil rights.
and announcing a formation of acivil rights fraud initiative to
be co-led with both the DOJ andall the 93 U.S.
attorneys' offices.
(16:22):
So although this memo did notspecifically call out
gender-affirming care, recallthat the memo from A.G.
Bondy discussed use of the FalseClaims Act as one prong of the
DOJ's plan to prevent mutilationof American children, and so
it's clear that this memo fromthe Deputy Attorney General
General was in line with thatand focused on the same
(16:43):
priorities.
At the end of May, we saw aletter from CMS Administrator
Dr.
Oz to unnamed recipientsentitled Urgent Review of
Quality Standards and GenderTransition Procedures.
And his letter cited the HHSreport, the lengthy HHS report
that I referenced, and expressedserious concerns with medical
(17:06):
interventions for genderdysphoria in children.
So this letter, though, waspretty significant because it
requested that the recipients ofthe letter submit a set of
documents and data to includepolicies, procedures, protocols,
any reports of adverse eventsand financial data for all
pediatric sex traitmodifications performed at the
(17:29):
recipient's institution and paidin whole or in part by the
federal government.
So this was very concerning toproviders.
And there was a lot of questionsof, this is an expansive
request, and what are they goingto do with this information?
And what does this mean for us?
Are we a target?
That same day, late in May,Health and Human Secretary
(17:54):
Kennedy sent a letter addressedspecifically to healthcare
providers, risk managers, andstate medical boards, advising
them to read with care the HHSreport, the lengthy 400-page
report, and to update theirtreatment protocols accordingly.
The letter also discussprotections for whistleblowers,
again, who make reportsconcerning what they deem
(18:16):
harmful interventions forminors.
So you can see the themes.
We've got them coming from alldifferent aspects of these
agencies.
It's, you know, tell us whatyou've been doing.
Have you been using federalfunds for it?
And encouraging whistleblowersto report.
So then in June, we continue tosee activity.
Assistant Attorney General BrettShumate issued a memo to all
(18:38):
Civil Division employees to setforth a set of priorities for a
civil rights fraud initiativethat was established in the
Blanche memo that I referenced.
The new memo from Shoemadestated that the Department of
Justice would use all availableresources to prioritize
investigations of doctors,hospitals, pharmaceutical
(19:00):
companies, and any otherappropriate entities.
It noted that the civil divisionwill aggressively pursue claims
under the False Claims Act.
So we keep hearing the FalseClaims Act.
That's going to be a tool to beused against health care
providers that billed thefederal government for
permissible services and gavethe example of providers that
attempt to evade state bans, sostate law bans, on gender
(19:24):
dysphoria treatment by knowinglysubmitting claims to Medicaid
with false diagnosis codes.
So the government's very much onthe lookout for that type of
activity.
And relatedly, a few weekslater, DOJ and HHS then
announced a joint effort calleda False Claims Act Working
Group.
So a lot of activity in thefalse claims space We also saw
(19:46):
at the end of June, after somenotice and comment rulemaking,
CMS, the Center for Medicare andMedicaid Services, issued the
Affordable Care Act marketplacefinal regulations prohibiting
coverage of sex traitmodification as an essential
health benefit for allbeneficiaries, not just minors,
starting in plan year 2026.
(20:08):
And then in July, we saw theFederal Trade Commission, the
FTC, hold an all-day workshopintended to help So this was
interesting because it wasperhaps an example of an
(20:31):
unexpected agency involvement.
I don't think when we werethinking about where restriction
on gender affirming care wouldgo that we would necessarily
think that the FTC would takethe lead, but their attention is
focused on the potential fordeceptive advertising.
and fraudulent and coercivepractices.
And so that's how they'reviewing this.
And their workshop, they hadinvolvement of patients who had
(20:55):
transitioned at one point andmay have detransitioned and
families and lots of testimonyalong that line.
The same day of that FTCworkshop, the Department of
Justice announced in a pressrelease that it had issued more
than 20 subpoenas on hospitalsand doctors that provide
gender-affirming care forminors.
(21:16):
And we were able to see one ofthose subpoenas publicly in a
court filing that gave usinsight into the extreme breadth
of the request in that subpoena.
The subpoena requested personnelfiles for all executives,
management, board members,employees, contractors, and
affiliates authorized toprescribe medications or perform
medical evaluations, as well asemployees, contractors, and
(21:39):
affiliates engaged in anybilling activities surrounding
that care.
The DOJ requested guidance,documentation, and
communications related to codingand billing of gender affirming
care, correspondence andcontracts with manufacturers of
puberty blockers and hormones,documentation identifying each
patient who was prescribedpuberty blockers and hormone
(22:01):
therapy to include things likename, date of birth, social
security number, address, parentguardian information, and
documents regarding informedconsent, adverse events, and the
safety of puberty blockers andhormones.
So incredibly expansive request.
I mean, people were reallyshocked at the level of detail
(22:22):
that the subpoena, the subpoenaswere requesting.
So and as Adam mentioned, therehas been a lot of continuing
activity in this space.
And just before we recorded thispodcast today, we got word that
a U.S.
district judge rejected one ofthose DOJ subpoenas that had
been issued to a pediatrichospital, which is a significant
(22:43):
rebuke to the administration'sefforts in this area.
So we're aware that there arechallenges to other outstanding
subpoenas, so we'll be closelywatching this area for
follow-up.
The FTC also, following itsday-long session, launched a
public inquiry to betterunderstand how consumers may
(23:03):
have been exposed to false orunsupported claims about
gender-affirming care,especially as it relates to
minors, and to gauge the harmsconsumers may be experiencing.
And so So as part of thatinquiry, the FCC issued a
request for comments, which asof the recording of the podcast
today had received about 6,600comments and was still open for
(23:25):
comment submission.
So we expect to see more in thatspace.
We saw in August, the U.S.
Office of Personnel Managementissuing a memo indicating that
the beginning in 2026, allfederal employee health plans
will be barred from coveringgender affirming care.
And then just recently onSeptember 3rd, the DOJ proposed
(23:45):
legislation to protect childrenfrom gender mutilation.
The proposed legislation istitled the Victims of Chemical
or Surgical Mutilation Act, andit prohibits healthcare
professionals, includingphysicians, hospitals, and
clinics from participating inchemical and surgical mutilation
of a child.
Interestingly, it also creates aprivate right of action for
(24:08):
children and the parents ofchildren whose healthy, this is
a quote, healthy body parts havebeen damaged by medical
professionals practicingchemical and surgical
mutilation.
And the legislation specificallyallows for an action to be
brought the latter of eitherwithin 25 years from the date of
(24:29):
the 18th birthday of anindividual subject to this
chemical or surgical mutilationas a child, or within four years
from the time the cost ofdetransition treatment is
incurred, whichever one islater.
So it's It's a very lengthystatute of limitations.
Finally, I'll note that we havebeen waiting, expecting a
(24:51):
proposed rule from CMS, whichwould prohibit hospitals
enrolled in the Medicare programfrom providing gender affirming
care to minors.
The expectation is that thisproposed rule will be a
condition of participation knownas a COP.
And the COPs just generally area set of federal regulations
that apply to healthcareorganizations, including
hospitals.
(25:11):
And in order to participate inMedicare and Medicaid, hospitals
must comply with the COPs andfailure to comply can result in
termination of a provideragreement with CMS, which is
generally felt to be vital tothe existence of the hospital.
So the COPs have establishedstandards for quality safety
operations and the rights ofpatients, but have not been
(25:33):
previously used to ban aspecific medical procedure or
type of care.
So this would be a new use for aCOP if we do end up seeing a
proposed rule COP.
So that was a lot, Adam, but youcan see that the The federal
government has continued to takesignificant action under this
administration's priority, andwe expect to see that continue.
SPEAKER_02 (25:58):
Well, I definitely see what you mean when you say,
well, you know, if we wanted totalk at length about any of
this, we could talk for hours,because any one of those things
could have been an hour-longdiscussion.
And the dynamic, and it'scertainly not just this
administration, but every pastadministration when it comes in,
(26:21):
we know the dynamic.
Federal government doessomething, and then some state
or coalition of states jumps into block it, either in court or
to take some other action toessentially blunt or nullify the
effect of that.
So what sort of responses are weseeing from states with regards
(26:43):
all these federal actions.
SPEAKER_01 (26:45):
Yes, yes, you're right.
So in early August, we saw 16states plus the District of
Columbia file suit against thepresident, Attorney General
Bondi and the DOJ.
The lawsuit challenges theexecutive order, the mutilation
executive order and DOJ actionsthat aim to eliminate the
(27:05):
provision of medically necessaryhealth care to transgender
individuals.
And they say by intimidatingproviders into ceasing care
through through threats of civiland criminal prosecution under
laws unconnected to lawfulprovision of this care.
So that's what the lawsuit isfocused on.
So we're watching that case.
It's relatively new, but that'llcertainly be instructive to see
(27:27):
what happens there.
I will say we're still watchingthe two cases that we discussed
in our first podcast, the onethat's in the District Court of
Maryland, PFLAG versus Trump,and the one in the Western
District of Washington, State ofWashington versus Trump, both of
which continue and have stateinvolvement, either as parties
or MEG.
(27:48):
And then to your broaderquestion about state
involvement, we've also seen alot of state law activities,
just specific to state laws.
And I'll highlight a few recentexamples from August.
One in Massachusetts in earlyAugust, the Massachusetts
governor signed an updatedshield law to strengthen
protections for patients andproviders.
(28:10):
It prevents disclosure ofsensitive data.
So there's physician's name andprohibits Massachusetts state or
local authorities fromcooperating with any federal or
out-of-state investigation intohealth care services that are
legally protected inMassachusetts, which is why it's
known as a shield law.
So these protections, this lawis, the protections are broader
(28:31):
than gender affirming care.
They're not just specific togender affirming care, but
clearly intended to includeprotections there.
Then we saw later in the monthin Michigan, the Michigan
Attorney General issued awarning to Michigan healthcare
providers and patients,reminding those providers that
refusing healthcare to a classof individuals based on their
protected status, such aswithholding the availability of
(28:53):
services from transgenderindividuals based on gender
identity or diagnosis of genderdysphoria, while still offering
those same services to cisgenderindividuals, may constitute
discrimination under Michiganlaw.
So that letter then alsoencouraged patients to consult
with legal counsel to understandtheir rights and obligations
(29:14):
under Michigan law and theimpact of federal litigation
challenging the federalgovernment's efforts to block
funding and limit health careaccess.
So we've got a state saying,hey, providers, I know you're
worried about what's happeningat the federal level, but let me
remind you that Michigan lawprotects these activities.
(29:35):
On the flip side, then, inAlaska, we saw their medical
board, the Alaska State MedicalBoard, pass a draft regulation
that would allow medicalproviders to be sanctioned by
the board for providinggender-affirming care to minors
and would put their license atrisk.
So clearly, the states continueto be active in this space on
both sides of the issue.
SPEAKER_02 (29:53):
That's, I mean, between the federal government
and the states, that's so muchfor providers, not to mention
patients, to deal with.
So what are providers andpatients doing with all of these
Yeah.
SPEAKER_01 (30:13):
It's a really, you know, Adam, it's a really tense
time for providers of genderaffirming care.
Those that believe in its meritsare torn between the persistent
and increasingly punitiveactions of the federal
government and what theproviders feel is the right care
for their transgender patientsand the care that those patients
(30:33):
are desperately seeking.
Added to that is the impact ofthe laws in which the in the
state in which the providerpractices.
In the restrictive states, we'vegot gender affirming care
providers who must navigatethose increasingly limiting
state laws that are obviouslyrobustly supported by the
(30:53):
federal government.
And then in states that providesupport for gender affirming
care, those providers mustbalance the growing federal
restrictions with the pressurefrom their own state governments
to continue to provide thiscare.
So it's a lot for providers tonavigate.
And what we're starting to seeincreasingly is movement in the
(31:17):
direction of discontinuingpediatric gender-affirming care.
And note that discontinuing thatcare brings its own risks,
including, as we mentioned,potential actions from state
governments that support thatcare, but also from, to your
point, Adam, families andpatients that are impacted by
(31:38):
discontinuance of this care.
So the best that we can say toproviders at this point is to
make sure that they're workingclosely with their legal team
and risk teams to stay up todate on state and federal
actions and how they intersectwith their provision of patient
care, because it's changingdaily and we don't really see an
(32:01):
end in sight at this point.
So understanding what'shappening at the federal level
and how that impacts your careand then what your state says is
crucial to providers in thisclinical space.
SPEAKER_02 (32:19):
Everything is changing.
The federal laws are changing.
The states have to react or thestates are doing their own thing
and the federal government isreacting.
So, um, it's, it's, it's quite abit of activity.
SPEAKER_01 (32:31):
It is.
And, you know, it's, it's achallenge for us as lawyers to
keep up with all of the activityand changes that I really have
so much empathy for theproviders and families in this
space as they're trying tonavigate provision of care, um,
figure out what they canprovide, figure out what's
available to these patients.
Um, and keep up on a dailybasis.
So it is a challenging time inthis clinical space.
SPEAKER_02 (32:56):
Yeah.
And I really appreciated your,you know, one of your final
comments, which is to make surethat you're working closely with
your legal and risk teams, youknow, and however your
organization or institution isconfigured to be working closely
with those people who are alsokeeping an eye on things, but
maybe have a focused on thepatient care and not worrying
(33:22):
about all these externalfactors.
There are people, again,depending on your organization
or institution, who do that, andyou should lean on them if
you're a clinician and you focuson doing the best you can for
your patients.
SPEAKER_01 (33:34):
That's right.
They're there to help you.
SPEAKER_02 (33:37):
Well, I would like to thank Jenny Nelson Carney for
being a part of this podcast andcontributing such a great body
of knowledge on gender affirmingcare.
It's obvious that she's beenkeeping up on this as we're all
struggling to do.
And thank the AHLA for invitingus to have this conversation
(34:01):
again and giving us a platformto make this available to help
everyone else who's hopefullytrying to keep up with all these
developments as well so jennythank you so much and thank you
everyone for joining us and havea great day thanks
SPEAKER_00 (34:24):
If you enjoyed this episode, be sure to subscribe to
AHLA's Speaking of Health Lawwherever you get your podcasts.
For more information about AHLAand the educational resources
available to the health lawcommunity, visit
AmericanHealthLaw.org.
And stay updated on breakinghealthcare industry news from
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(34:47):
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UNKNOWN (34:54):
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This episode of AHLA Speaking of Health Law is
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For more information, visitAmericanHealthLaw.org.
SPEAKER_02 (00:17):
Hello, everyone, and welcome to this AHLA podcast.
This is the update ongender-affirming care.
This is a part two from our top10 podcast earlier this year
talking about variousdevelopments in gender-affirming
care in 2025.
(00:37):
My name is Adam Lawton.
I'm a shareholder at KlingbergTarik in Houston, Texas.
My practice focuses on healthcare transactions and regulatory
issues.
I'm also vice chair of thePhysician Organizations Practice
Group for AHLA.
And today we'll be talking withJenny Nelson Carney about
various things that havehappened during the first eight
(01:00):
or nine months of this year withregards to gender affirming
care.
I think we ought to acknowledgethat this area is rapidly
changing.
So with that, I'd like tointroduce our guest today, Jenny
Nelson Carney.
Jenny, can you introduceyourself?
SPEAKER_01 (01:16):
Sure.
Thanks so much, Adam.
As Adam said, I'm Jenny NelsonCarney.
I'm a partner and a healthlawyer at Epstein Becker and
Green, and I'm also chair of theAHLA Women's Leadership Council.
I'm really happy to be here andappreciate AHLA giving us an
opportunity to talk aboutcontinuing developments in the
gender-affirming care space.
SPEAKER_02 (01:39):
Thank you, Jenny.
So we spoke earlier this year,like I said, I believe it was
around March.
It was very early into the newadministration.
And we talked a lot aboutvarious things that were
happening in gender-affirmingcare.
We'll revisit those.
But just to set a basis for thisdiscussion, when we say
(01:59):
gender-affirming care, how wouldyou define that or how should we
define that in this discussion?
SPEAKER_01 (02:06):
Yeah, I'm glad you asked that.
I think it's always an importantlevel setting when you're
discussing gender care fortransgender people, because I
think that there is stillconfusion as to what that means.
And it's important to know thatgender-affirming care is an
umbrella term that covers arange of medical and non-medical
(02:27):
interventions used to supportindividuals where there's a
conflict between theindividual's gender identity and
the gender that they wereassigned at birth.
Most of the public discussion ofgender- or sometimes publicly
it's referred to as gendertransition care, is specific to
surgery and medications,medications like puberty
(02:49):
blockers and hormone therapy.
But it's important to keep inmind that gender affirming care
is much broader than that andincludes things like social
affirmation, which is changes toappearance and names and
pronouns, as well as legalaffirmation, which is changes on
legal documents to those samethings, gender and name.
(03:09):
So clearly some forms of genderaffirming care are easily
reversible, like socialaffirmations, and others such as
the surgical procedures are not.
When we last spoke in ourprevious podcast, we talked a
lot about the fact that most ofthe restrictions on gender
affirming care have been focusedon preventing minors, so the
(03:31):
children, people under 18, fromaccessing gender affirming care.
But we are starting to see someincreasing governmental activity
aimed to restrict gender Andthis continues to be an
important and relevant topic forour healthcare providers because
there are approximately 2.8million people in the United
(03:51):
States, ages 13 and older, whoidentify as transgender.
And that's actually a new datapoint since our last podcast
recording.
We just reviewed a report fromthe Williams Institute at the
UCLA School of Law last month,and 2.8 million is an increase
in the number.
number from what we reported inMarch.
(04:11):
And it's about 1% of the U.S.
population in that age frame.
So it's certainly a significantnumber of people seeking medical
care.
SPEAKER_02 (04:19):
That is a lot of people.
I have not heard that number,but that's actually a tremendous
amount of people when you thinkabout it.
Across the United States, ifthere's that many people,
everybody's going to knowsomeone who's experiencing that
or is who's affected by thesethings that we're discussing so
(04:42):
one of the things that wediscussed quite at length uh
during our previous podcast wasthis uh skirmetti case that was
in front of the supreme courtand i think since we spoke
there's been a decision so doyou want to talk about where
that case went and then what thefallout has been from from that
decision
SPEAKER_01 (05:02):
Sure.
So just as a reminder, theScarametti case was brought by
families of transgender minorsand revolved around the question
of whether a specific Tennesseelaw, which we'll refer to as
Senate Bill 1, violates theEqual Protection Clause of the
14th Amendment of the U.S.
Constitution.
Senate Bill 1 prohibits allmedical treatments intended to
(05:24):
allow a minor to identify withor live as an identity
inconsistent with their sex.
And it also, importantly,prohibits prohibits medical care
to treat discomfort or distressfrom a discordance between their
sex and asserted identity.
And as we discussed on our lastpodcast, the U.S.
(05:44):
Court of Appeals for the SixthCircuit had upheld Tennessee's
ban, upheld Senate Bill 1.
And so then it was appealed tothe Supreme Court.
The Supreme Court has indeedissued a decision in this case.
We got a decision in June, whichjust earlier this summer.
The opinion was by Chief JusticeRobert It was a 6-3 vote, and
the opinion said thatTennessee's law prohibiting
(06:07):
certain medical treatments fortransgender minors is not
subject to heightened scrutinyunder the Equal Protection
Clause of the 14th Amendment andsatisfies rational basis review.
(06:32):
a governmental action as long asit is rationally related to
legitimate government purpose.
And that's what they found here.
So that was a significant case.
It, um, gave significant, um, I,I think that the states that
were, have been marching downthe road to limit gender
affirming care, this was asignal to them that, that those
(06:55):
laws are likely to be upheld asconstitutional.
And we've already seen influencefrom this case, uh, in, um,
Other legal cases, and I'llhighlight one in Arkansas, their
General Assembly had passed alaw to prohibit healthcare
professionals from providinggender transition procedures to
minors and to prohibit thoseproviders from referring minors
(07:19):
for transition procedures.
So even if they were notproviding them, they prohibited
the actual referral saying,okay, well, you can go over here
and get it, even if I can't giveit to you.
So a group of four minors livingin Arkansas, along with their
parents And then several healthcare providers sued to enjoin
enforcement of this law.
The district court ruled intheir favor, finding that the
(07:40):
law violated both the FirstAmendment and the Equal
Protection Clause and DueProcess Clause of the 14th and
issued an injunction.
But then the state AG and themedical board appealed and the
Eighth Circuit, relying in parton the Scrimetti decision we
just discussed, reversed thelower court and upheld the ban
on care.
So we expect to see more caseslike that in Scrimetti.
(08:02):
METI continue to be cited as abasis for decisions.
SPEAKER_02 (08:08):
And one of the other topics I recall is, you know,
even in the very early days ofthe new administration, you
know, starting January 20th, andby the time that we reported,
there had been a lot of signalscoming out of the
administration, a lot of talkabout the ways that they were
(08:28):
going to push back on genderfrom here, push back on
developments in this area.
So what sorts of actions have weseen from the federal government
with regards to togender-forming care.
SPEAKER_01 (08:40):
Well, Adam, buckle up because we have seen a lot of
activity since that time.
I'm going to take us back to ourprevious podcast where we spent
a lot of time dissecting the twoexecutive orders that were
issued in January as they werereally the starting point for
the federal government'sactivities.
And so just to quickly recap, wehad the executive order titled
(09:03):
Defending Women from GenderIdeology, Extremism and
Restoring Biological Truth tothe Federal Government, which
basically said it's the policyof of the U.S.
to recognize just two sexes,male and female, and that those
are not changeable.
And it directed federal agenciesto enforce laws protecting men
and women as biologicallydistinct sexes and to use the
(09:23):
term sex and not gender, andalso prohibited the federal
government from expendingfederal funds to promote gender
ideology.
So that was the one, theDefending Women EO.
And then the other EO, therewere lots of executive orders,
but these were the two that areparticularly relevant to
gender-affirming care.
The second one was titledProtecting Children from
(09:44):
Chemical and SurgicalMutilation.
And this is the one that has themost significant impact on
health care providers.
This executive order directedthe federal agencies to take
appropriate steps to ensure thatinstitutions receiving federal
research or education grants,which most medical schools and
hospitals, that they need to endthe chemical, and this is a
(10:05):
quote, chemical and surgicalmutilation of people under 19
years of age.
So it also turned terminatedcoverage for certain
gender-affirming care.
Government provided medicalbenefits, ordered Health and
Human Services to withdraw itsMarch 2022 guidance on
gender-affirming care, civilrights, and patient privacy, and
to issue new guidance protectingwhistleblowers who take action
(10:28):
related to ensuring compliancewith the EO.
And it also ordered the DOJ, theDepartment of Justice, to
prioritize enforcement of anexisting law prohibiting female
genital mutilation.
So at At the time that werecorded the last podcast, there
was a lot of consternationamongst medical providers.
What does this mean?
Do we have to stop right now?
(10:49):
Are these directives to us?
Are these directives to theagencies?
Which the latter is true,directives to the agencies.
But it was a good indication ofwhat was to come.
And so since that time, we'veseen incredible action from the
White House and agencies.
And we could really spend hoursdiscussing each one and the
(11:10):
impact that they may have, and Iknow I and many healthcare
lawyers have done so, but forpurposes of our podcast today,
since we don't have hours andhours to discuss, I'm just going
to give an overview of theactions that we've seen in a
chronological order just to giveour listeners an idea of what's
been happening.
So on our last podcast, wediscussed that we had started to
(11:32):
see some of the actions.
There was a CMS letter issued tohealthcare providers on March
5th that was quickly followed bya letter from HRSA to hospital
and and a letter from SAMHSA tocolleagues and grantees, all
really reiterating the thingsthat you heard in the EO.
So since that time, we first sawon April 11th, CMS sent a letter
(11:54):
to state Medicaid directorsreminding states that Medicaid
programs have a responsibilityto ensure that payments are
consistent with efficiency,economy, and quality of care,
and to remind states that thereare longstanding federal
Medicaid regulations prohibitingfederal funding for coverages of
services whose purpose is topermanently render certain
(12:17):
populations including childrenincapable of reproducing so
clearly they're focused here oncertain surgical procedures
related to gender affirming carea few days later then health and
human services announced anonline complaint portal so
anyone can just log online tothis complaint portal and report
(12:38):
chemical and surgical mutilationof children And if you look at
it, it requests very specificinformation about healthcare
providers that may be providingthis care, names and addresses
and types of care.
And it was, along with that, HHSpublished guidance to protect
whistleblowers who make suchreports.
(12:58):
So that was pretty significantand certainly of note to
healthcare providers who providecare in this space.
A few weeks later, AttorneyGeneral Bondi issued a memo to
specific agencies heads entitledPreventing the Mutilation of
American Children.
You see the theme that we keephearing from the agencies.
This memo was pretty detailedand included a five-part plan,
(13:22):
which included enforcement ofexisting laws outlying female
genital mutilation, which wasalso referenced in the executive
order.
Second, investigations of theFood, Drug, and Cosmetic Act and
False Claims Act, holdingaccountable medical providers
Thank you so much.
(14:10):
the AG called Junk Science,which was largely the guidelines
from WPATH, which is the WorldProfessional Association for
Transgender Health.
We talked about that a littlebit in our previous podcast.
Fourth was establishing afederal and state coalition
against child mutilation.
And fifth, promoting newlegislation protecting children.
(14:30):
And we're going to talk a littlebit more about that in a minute.
But AG Bondi's memo wasextensive and laid out, here's
where we're going and we haveindeed seen agency action for
each part of this five-part memothat she said this is what DOJ,
where we're headed.
(14:52):
So very significantly at thebeginning of May, Health and
Human Service issued a lengthyreport.
It was over 400 pages entitledTreatment for Pediatric Gender
Dysphoria, Review of Evidenceand Best Practices.
And the report really challengedthe validity of the existing
gender affirming care model ofcare, suggesting that it lacks
(15:15):
scientific and medical support,and spent a lot of time
discussing what they deemirreversible risks associated
with pediatric medicaltransition.
The report also recommendedpsychotherapy as a non-invasive
alternative to endocrine andsurgical interventions for the
treatment of gender dysphoria.
But I will say that the reporthas received really significant
(15:38):
criticism for having both Bothanonymous authors, which you
don't typically see in a reportlike this, and not being subject
to peer review, which is areally surprising factor.
So the report really has comeunder some significant scrutiny.
Later in May, we saw a memo fromthe Deputy Attorney General Todd
(16:01):
Blanch focused on use of theFalse Claims Act against those
who defraud the United States bytaking its money while knowingly
violating civil rights.
and announcing a formation of acivil rights fraud initiative to
be co-led with both the DOJ andall the 93 U.S.
attorneys' offices.
(16:22):
So although this memo did notspecifically call out
gender-affirming care, recallthat the memo from A.G.
Bondy discussed use of the FalseClaims Act as one prong of the
DOJ's plan to prevent mutilationof American children, and so
it's clear that this memo fromthe Deputy Attorney General
General was in line with thatand focused on the same
(16:43):
priorities.
At the end of May, we saw aletter from CMS Administrator
Dr.
Oz to unnamed recipientsentitled Urgent Review of
Quality Standards and GenderTransition Procedures.
And his letter cited the HHSreport, the lengthy HHS report
that I referenced, and expressedserious concerns with medical
(17:06):
interventions for genderdysphoria in children.
So this letter, though, waspretty significant because it
requested that the recipients ofthe letter submit a set of
documents and data to includepolicies, procedures, protocols,
any reports of adverse eventsand financial data for all
pediatric sex traitmodifications performed at the
(17:29):
recipient's institution and paidin whole or in part by the
federal government.
So this was very concerning toproviders.
And there was a lot of questionsof, this is an expansive
request, and what are they goingto do with this information?
And what does this mean for us?
Are we a target?
That same day, late in May,Health and Human Secretary
(17:54):
Kennedy sent a letter addressedspecifically to healthcare
providers, risk managers, andstate medical boards, advising
them to read with care the HHSreport, the lengthy 400-page
report, and to update theirtreatment protocols accordingly.
The letter also discussprotections for whistleblowers,
again, who make reportsconcerning what they deem
(18:16):
harmful interventions forminors.
So you can see the themes.
We've got them coming from alldifferent aspects of these
agencies.
It's, you know, tell us whatyou've been doing.
Have you been using federalfunds for it?
And encouraging whistleblowersto report.
So then in June, we continue tosee activity.
Assistant Attorney General BrettShumate issued a memo to all
(18:38):
Civil Division employees to setforth a set of priorities for a
civil rights fraud initiativethat was established in the
Blanche memo that I referenced.
The new memo from Shoemadestated that the Department of
Justice would use all availableresources to prioritize
investigations of doctors,hospitals, pharmaceutical
(19:00):
companies, and any otherappropriate entities.
It noted that the civil divisionwill aggressively pursue claims
under the False Claims Act.
So we keep hearing the FalseClaims Act.
That's going to be a tool to beused against health care
providers that billed thefederal government for
permissible services and gavethe example of providers that
attempt to evade state bans, sostate law bans, on gender
(19:24):
dysphoria treatment by knowinglysubmitting claims to Medicaid
with false diagnosis codes.
So the government's very much onthe lookout for that type of
activity.
And relatedly, a few weekslater, DOJ and HHS then
announced a joint effort calleda False Claims Act Working
Group.
So a lot of activity in thefalse claims space We also saw
(19:46):
at the end of June, after somenotice and comment rulemaking,
CMS, the Center for Medicare andMedicaid Services, issued the
Affordable Care Act marketplacefinal regulations prohibiting
coverage of sex traitmodification as an essential
health benefit for allbeneficiaries, not just minors,
starting in plan year 2026.
(20:08):
And then in July, we saw theFederal Trade Commission, the
FTC, hold an all-day workshopintended to help So this was
interesting because it wasperhaps an example of an
(20:31):
unexpected agency involvement.
I don't think when we werethinking about where restriction
on gender affirming care wouldgo that we would necessarily
think that the FTC would takethe lead, but their attention is
focused on the potential fordeceptive advertising.
and fraudulent and coercivepractices.
And so that's how they'reviewing this.
And their workshop, they hadinvolvement of patients who had
(20:55):
transitioned at one point andmay have detransitioned and
families and lots of testimonyalong that line.
The same day of that FTCworkshop, the Department of
Justice announced in a pressrelease that it had issued more
than 20 subpoenas on hospitalsand doctors that provide
gender-affirming care forminors.
(21:16):
And we were able to see one ofthose subpoenas publicly in a
court filing that gave usinsight into the extreme breadth
of the request in that subpoena.
The subpoena requested personnelfiles for all executives,
management, board members,employees, contractors, and
affiliates authorized toprescribe medications or perform
medical evaluations, as well asemployees, contractors, and
(21:39):
affiliates engaged in anybilling activities surrounding
that care.
The DOJ requested guidance,documentation, and
communications related to codingand billing of gender affirming
care, correspondence andcontracts with manufacturers of
puberty blockers and hormones,documentation identifying each
patient who was prescribedpuberty blockers and hormone
(22:01):
therapy to include things likename, date of birth, social
security number, address, parentguardian information, and
documents regarding informedconsent, adverse events, and the
safety of puberty blockers andhormones.
So incredibly expansive request.
I mean, people were reallyshocked at the level of detail
(22:22):
that the subpoena, the subpoenaswere requesting.
So and as Adam mentioned, therehas been a lot of continuing
activity in this space.
And just before we recorded thispodcast today, we got word that
a U.S.
district judge rejected one ofthose DOJ subpoenas that had
been issued to a pediatrichospital, which is a significant
(22:43):
rebuke to the administration'sefforts in this area.
So we're aware that there arechallenges to other outstanding
subpoenas, so we'll be closelywatching this area for
follow-up.
The FTC also, following itsday-long session, launched a
public inquiry to betterunderstand how consumers may
(23:03):
have been exposed to false orunsupported claims about
gender-affirming care,especially as it relates to
minors, and to gauge the harmsconsumers may be experiencing.
And so So as part of thatinquiry, the FCC issued a
request for comments, which asof the recording of the podcast
today had received about 6,600comments and was still open for
(23:25):
comment submission.
So we expect to see more in thatspace.
We saw in August, the U.S.
Office of Personnel Managementissuing a memo indicating that
the beginning in 2026, allfederal employee health plans
will be barred from coveringgender affirming care.
And then just recently onSeptember 3rd, the DOJ proposed
(23:45):
legislation to protect childrenfrom gender mutilation.
The proposed legislation istitled the Victims of Chemical
or Surgical Mutilation Act, andit prohibits healthcare
professionals, includingphysicians, hospitals, and
clinics from participating inchemical and surgical mutilation
of a child.
Interestingly, it also creates aprivate right of action for
(24:08):
children and the parents ofchildren whose healthy, this is
a quote, healthy body parts havebeen damaged by medical
professionals practicingchemical and surgical
mutilation.
And the legislation specificallyallows for an action to be
brought the latter of eitherwithin 25 years from the date of
(24:29):
the 18th birthday of anindividual subject to this
chemical or surgical mutilationas a child, or within four years
from the time the cost ofdetransition treatment is
incurred, whichever one islater.
So it's It's a very lengthystatute of limitations.
Finally, I'll note that we havebeen waiting, expecting a
(24:51):
proposed rule from CMS, whichwould prohibit hospitals
enrolled in the Medicare programfrom providing gender affirming
care to minors.
The expectation is that thisproposed rule will be a
condition of participation knownas a COP.
And the COPs just generally area set of federal regulations
that apply to healthcareorganizations, including
hospitals.
(25:11):
And in order to participate inMedicare and Medicaid, hospitals
must comply with the COPs andfailure to comply can result in
termination of a provideragreement with CMS, which is
generally felt to be vital tothe existence of the hospital.
So the COPs have establishedstandards for quality safety
operations and the rights ofpatients, but have not been
(25:33):
previously used to ban aspecific medical procedure or
type of care.
So this would be a new use for aCOP if we do end up seeing a
proposed rule COP.
So that was a lot, Adam, but youcan see that the The federal
government has continued to takesignificant action under this
administration's priority, andwe expect to see that continue.
SPEAKER_02 (25:58):
Well, I definitely see what you mean when you say,
well, you know, if we wanted totalk at length about any of
this, we could talk for hours,because any one of those things
could have been an hour-longdiscussion.
And the dynamic, and it'scertainly not just this
administration, but every pastadministration when it comes in,
(26:21):
we know the dynamic.
Federal government doessomething, and then some state
or coalition of states jumps into block it, either in court or
to take some other action toessentially blunt or nullify the
effect of that.
So what sort of responses are weseeing from states with regards
(26:43):
all these federal actions.
SPEAKER_01 (26:45):
Yes, yes, you're right.
So in early August, we saw 16states plus the District of
Columbia file suit against thepresident, Attorney General
Bondi and the DOJ.
The lawsuit challenges theexecutive order, the mutilation
executive order and DOJ actionsthat aim to eliminate the
(27:05):
provision of medically necessaryhealth care to transgender
individuals.
And they say by intimidatingproviders into ceasing care
through through threats of civiland criminal prosecution under
laws unconnected to lawfulprovision of this care.
So that's what the lawsuit isfocused on.
So we're watching that case.
It's relatively new, but that'llcertainly be instructive to see
(27:27):
what happens there.
I will say we're still watchingthe two cases that we discussed
in our first podcast, the onethat's in the District Court of
Maryland, PFLAG versus Trump,and the one in the Western
District of Washington, State ofWashington versus Trump, both of
which continue and have stateinvolvement, either as parties
or MEG.
(27:48):
And then to your broaderquestion about state
involvement, we've also seen alot of state law activities,
just specific to state laws.
And I'll highlight a few recentexamples from August.
One in Massachusetts in earlyAugust, the Massachusetts
governor signed an updatedshield law to strengthen
protections for patients andproviders.
(28:10):
It prevents disclosure ofsensitive data.
So there's physician's name andprohibits Massachusetts state or
local authorities fromcooperating with any federal or
out-of-state investigation intohealth care services that are
legally protected inMassachusetts, which is why it's
known as a shield law.
So these protections, this lawis, the protections are broader
(28:31):
than gender affirming care.
They're not just specific togender affirming care, but
clearly intended to includeprotections there.
Then we saw later in the monthin Michigan, the Michigan
Attorney General issued awarning to Michigan healthcare
providers and patients,reminding those providers that
refusing healthcare to a classof individuals based on their
protected status, such aswithholding the availability of
(28:53):
services from transgenderindividuals based on gender
identity or diagnosis of genderdysphoria, while still offering
those same services to cisgenderindividuals, may constitute
discrimination under Michiganlaw.
So that letter then alsoencouraged patients to consult
with legal counsel to understandtheir rights and obligations
(29:14):
under Michigan law and theimpact of federal litigation
challenging the federalgovernment's efforts to block
funding and limit health careaccess.
So we've got a state saying,hey, providers, I know you're
worried about what's happeningat the federal level, but let me
remind you that Michigan lawprotects these activities.
(29:35):
On the flip side, then, inAlaska, we saw their medical
board, the Alaska State MedicalBoard, pass a draft regulation
that would allow medicalproviders to be sanctioned by
the board for providinggender-affirming care to minors
and would put their license atrisk.
So clearly, the states continueto be active in this space on
both sides of the issue.
SPEAKER_02 (29:53):
That's, I mean, between the federal government
and the states, that's so muchfor providers, not to mention
patients, to deal with.
So what are providers andpatients doing with all of these
Yeah.
SPEAKER_01 (30:13):
It's a really, you know, Adam, it's a really tense
time for providers of genderaffirming care.
Those that believe in its meritsare torn between the persistent
and increasingly punitiveactions of the federal
government and what theproviders feel is the right care
for their transgender patientsand the care that those patients
(30:33):
are desperately seeking.
Added to that is the impact ofthe laws in which the in the
state in which the providerpractices.
In the restrictive states, we'vegot gender affirming care
providers who must navigatethose increasingly limiting
state laws that are obviouslyrobustly supported by the
(30:53):
federal government.
And then in states that providesupport for gender affirming
care, those providers mustbalance the growing federal
restrictions with the pressurefrom their own state governments
to continue to provide thiscare.
So it's a lot for providers tonavigate.
And what we're starting to seeincreasingly is movement in the
(31:17):
direction of discontinuingpediatric gender-affirming care.
And note that discontinuing thatcare brings its own risks,
including, as we mentioned,potential actions from state
governments that support thatcare, but also from, to your
point, Adam, families andpatients that are impacted by
(31:38):
discontinuance of this care.
So the best that we can say toproviders at this point is to
make sure that they're workingclosely with their legal team
and risk teams to stay up todate on state and federal
actions and how they intersectwith their provision of patient
care, because it's changingdaily and we don't really see an
(32:01):
end in sight at this point.
So understanding what'shappening at the federal level
and how that impacts your careand then what your state says is
crucial to providers in thisclinical space.
SPEAKER_02 (32:19):
Everything is changing.
The federal laws are changing.
The states have to react or thestates are doing their own thing
and the federal government isreacting.
So, um, it's, it's, it's quite abit of activity.
SPEAKER_01 (32:31):
It is.
And, you know, it's, it's achallenge for us as lawyers to
keep up with all of the activityand changes that I really have
so much empathy for theproviders and families in this
space as they're trying tonavigate provision of care, um,
figure out what they canprovide, figure out what's
available to these patients.
Um, and keep up on a dailybasis.
So it is a challenging time inthis clinical space.
SPEAKER_02 (32:56):
Yeah.
And I really appreciated your,you know, one of your final
comments, which is to make surethat you're working closely with
your legal and risk teams, youknow, and however your
organization or institution isconfigured to be working closely
with those people who are alsokeeping an eye on things, but
maybe have a focused on thepatient care and not worrying
(33:22):
about all these externalfactors.
There are people, again,depending on your organization
or institution, who do that, andyou should lean on them if
you're a clinician and you focuson doing the best you can for
your patients.
SPEAKER_01 (33:34):
That's right.
They're there to help you.
SPEAKER_02 (33:37):
Well, I would like to thank Jenny Nelson Carney for
being a part of this podcast andcontributing such a great body
of knowledge on gender affirmingcare.
It's obvious that she's beenkeeping up on this as we're all
struggling to do.
And thank the AHLA for invitingus to have this conversation
(34:01):
again and giving us a platformto make this available to help
everyone else who's hopefullytrying to keep up with all these
developments as well so jennythank you so much and thank you
everyone for joining us and havea great day thanks
SPEAKER_00 (34:24):
If you enjoyed this episode, be sure to subscribe to
AHLA's Speaking of Health Lawwherever you get your podcasts.
For more information about AHLAand the educational resources
available to the health lawcommunity, visit
AmericanHealthLaw.org.
And stay updated on breakinghealthcare industry news from
the major media outlets withAHLA's Health Law Daily Podcast,
exclusively for AHLAComprehensive members.
(34:47):
To subscribe and add thisprivate podcast feed to your
podcast app, go toAmericanHealthLaw.org slash
Daily Podcast.
UNKNOWN (34:54):
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