March 21, 2025 • 29 mins
Based on AHLA's annual Health Law Connections article, this special series brings together thought leaders from across the health law field to discuss the top ten issues of 2025. In the ninth episode, Adam Laughton, Shareholder, Greenberg Traurig LLP, speaks with Jennifer Nelson Carney, Member, Epstein Becker & Green PC, about the latest developments related to gender affirming care. They discuss what gender affirming care is; state legislative and medical board activities; the Skrmetti case; Trump Administration executive actions, federal agency memos, and ensuing litigation; and how to counsel health care providers in this rapidly changing environment. From AHLA's Physician Organizations Practice Group.
Watch the conversation here.
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Speaker 1 (00:00):
Speaker 2 (00:04):
A HLA is pleased to present this special series
highlighting the top 10 healthlaw issues of 2025, where we
bring together thought leadersfrom across the health law
field to discuss the majortrends and developments of the
year. To stay updated on allthe major health law news,
subscribe to ALA's New HealthLaw Daily podcast, available
exclusively for premiummembers@americanhealthlaw.org
(00:27):
slash daily podcast .
Speaker 3 (00:35):
Welcome everyone to today's , uh, podcast. Uh, this
is on behalf of the AmericanHealth Lawyers Association, a
HLA and its PhysicianOrganization's Practice Group.
Uh, today is part of our serieson the top 10 issues in health
law for 2025. And today we'llbe talking about , uh, gender
(00:57):
affirming care and the issuesthat have happened in past
years and looking forward tothe coming year, the things
that we expect. And we're herewith , uh, my guest today , uh,
Jenny Nelson Carney fromEpstein Becker Green . Jenny ,
uh, thanks for being here today.
Speaker 4 (01:13):
Thanks so much, Adam. I'm really pleased to be
able to participate in thepodcast today. Um, and I'd be
remiss if I didn't mention toyou that I chair, ALA's Women's
Leadership Council, which is agreat organization. So for
anyone listening to this thatwould like to get involved,
please reach out on that. Uh ,but I'm excited to, to speak
with you, Adam, about , um,gender affirming care. Uh,
(01:34):
there's obviously a lot ofactivity happening.
Speaker 3 (01:38):
Sure. Um, and, and Jenny , did you wanna say
anything about your practice?
Um, then maybe I can introducemy before we get into the
substance.
Speaker 4 (01:46):
Sure. Sure. Uh, thank you for that. So, as you
mentioned, I'm a partner atEpstein Becker and Green. I'm a
healthcare regulatory attorney.
I work a lot with , uh,providers and trying to help
them provide good patient carefrom really intake to discharge
and get paid for it and, andcomply with all the regulations
(02:08):
at the state and federal level, um, that they're , that they
are , uh, subject to. So it's a, I've been practicing for 21
years and really enjoy the areaof healthcare law , um, and
have been a member of a LA thewhole time, which has been ,
uh, uh, really, reallyenjoyable.
Speaker 3 (02:27):
And , uh, just for everyone, my name is Adam
Lawton . I'm a shareholder atGreenburg Tarig in our Houston,
Texas office. I'm also ahealthcare attorney , um, doing
transactions and regulatorywork. I also work with many
healthcare providers , uh, manyof whom who are also involved
in this area of sort of genderaffirming care , uh, what we
(02:49):
think of as reproductive healthand advising and counseling
them on various regulatoryissues, especially these that
are changing at the state andfederal level , uh, it seems
like every day . So, Jenny , toto start our conversation, I
think so much of theconversation around this is,
you know, what jargon do we usein vocabulary and using right
(03:11):
words for things. So why don'tyou give us a good definition
of gender affirming care forpurposes of this discussion?
Speaker 4 (03:20):
Sure. Adam, that's a great place to start. So,
gender affirming care is reallyan umbrella term covering a
range of different medicalinterventions used to support
individuals where there is aconflict between the
individual's gender identityand the gender that they were
assigned at birth. That's,that's the definition that we
most typically see. So I thinkone of the misunderstandings ,
(03:43):
um, often is that genderaffirming care is just surgical
procedures, but it's reallyjust a broad category, and it
includes things like socialaffirmations , um, which may be
things like changes tosomeone's appearance, even down
to the clothes they wear anduse of pronouns. Uh, a second
part of that would bemedications like puberty
(04:04):
blockers and hormone therapy,which we're hearing a lot about
these days. Third would besurgical procedures. Um, and
then fourth is sort of the, thelegal piece of it where , um,
someone might change theirgender name on legal documents,
and, and that's often referredto as legal affirmation. So in
within each of thosecategories, you'll see some of
(04:25):
them , um, some forms of genderaffirming care are easily
reversible, like socialaffirmations and others are not
easily reversible, likesurgical procedures. Um, most
of the recent focus that we'veseen on gender affirming care
has been related to minors. Andso it's, I think it's important
to think through what thatmeans because gender affirming
(04:45):
care for minors is typically ,um, care that involves not just
the minor, but their parent orguardian and medical
professionals working togetherto make decisions about the
care that the minor receives. Iwill say it is more unusual for
permanent medical interventionsto occur before a transgender
person is old enough to giveinformed consent. So what we
(05:08):
usually see with minors who arereceiving gender affirming care
is prior to puberty, we seethings like the social
transition, like changingnames, pronouns, and clothing.
And then during or afterpuberty is when we might see
the availability of certaintypes of medical treatment. It
might just be medication atthat point . Um, I think, you
(05:28):
know, you see most of thesurgical interventions
happening with adults, but ,um, I think the other piece of
this that's important to to, tokeep in mind is that in the
United States, there's about1.6 million people, ages 13 and
older who identify astransgender. So while that is a
small number compared to thetotal population of the
(05:49):
country, it's under 1%, it's alarge enough number that many
healthcare providers are caringfor patients who are
transgender. Great .
Speaker 3 (05:57):
Thank you. And so, HLA identified gender affirming
care as one of its top 10issues for 2025. And you , uh,
wrote the article for HLA,which appeared in its magazine
, uh, in January of this year.
And that identification is sortof in part based on things that
may have happened , um, in2024, but also anticipating
(06:21):
things that are going to happenin 2025. So, just maybe to
start this question, what arethings that happened in 2024,
you know, and obviously some ofthem may bleed over in 2025.
What are some of the thingsthat happened in 2024 that
might have led to the HLAidentifying this as a top
issue?
Speaker 4 (06:42):
Yeah, that's a, it's an important , um, point and,
and a good question. So , um,although gender affirming care
has taken a really prominentposition in the beginning of
2025, you know, we're seeing itin the news daily, it was an
important issue , uh, animportant health law issue in,
in 2024 and, and really a fewyears before that as well. Um,
(07:04):
and, and when I say that,obviously it's always been an
important issue to peopleproviding the care and people
receiving the care, but it'sbecome more of a prominent
issue to the , to the generalpublic in the last few years.
And really , uh, it seems likethe reason for that is because
we've had a growing number ofstates that have moved to
either restrict or protectaccess to certain treatments
(07:26):
for gender diverse , uh, peoplevia state legislation. And most
of those laws, almost all ofthem, are focused at on minors.
Um, as of the recording of thispodcast, I believe we have 27
states that have enactedlegislation to restrict certain
forms of gender affirming carefor minors. Um, most of those
(07:46):
25 of them, I believe, bansurgery and medication and the
remaining to only ban surgery,but allow some forms of
medication. In addition, 24 ofthose states impose
professional or legal penaltieson healthcare practitioners who
provide minors with genderaffirming care. So again, what
(08:07):
I'm describing there is thestates that have taken a
restrictive position on thistype of care. On the other side
, uh, the remaining 23 statesplus District of Columbia and
five territories either have nolegislative restrictions on the
provision or access to genderaffirming care, or actively
protect access to it. Soclearly a ton of state activity
(08:29):
along this line that havereally brought this issue to
the public's attention. We'vealso seen activity from some
state medical boards to holdindividual providers
accountable for violations ofthe laws restricting provision
of gender affirming care. Um,so in particular, Texas law
directs that the Texas MedicalBoard, which oversees provision
(08:51):
of medical services in Texas ,um, the law directs that the
medical board there revokes themedical license or other
authorization to practicemedicine of a physician who
violates those provisions ofTexas state law that prohibit
gender transition medicalinterventions such as
surgeries, puberty blockers,and provision of ho hormones
for minors. Many of thosethings that, that we just
(09:13):
discussed. Um, another exampleof a state that does that is
Georgia, which holds physiciansadministratively accountable
for violations of some of therestrictive gender affirming
care laws. So we would expect,we are expecting to see
increased activity from themedical boards in states that
have taken a restrictiveposition on the provision of
gender affirming care. Those,those states have sort of been
(09:36):
out front on it, but we expectto see more of that activity in
the restrictive states goingforward.
Speaker 3 (09:43):
So one thing that, you know, just people, not even
lawyers calling this in thenews may have bird , uh, with
regards to, you know, whetheryou call it transgender care,
gender affirming care , um,that there are cases working
their way through the courts atvarious levels. And there's one
case, or at least one casebefore the Supreme Court , uh,
(10:03):
this past term, I believe it's, uh, called SC Meti . Mm-hmm
. Uh , could yougive us a , a brief overview of
what that case is about, whereit stands and what's happening
there, what we expect?
Speaker 4 (10:14):
Sure. Yeah. It's a very important case , um, for
this area of, of medicine. So ,um, the Smei case was brought
by families of transgenderminors, and it revolves around
the question of whether aTennessee law, which prohibits
all medical treatments intendedto allow a minor to identify
with or live as a purportedidentity inconsistent with the
(10:38):
minor sex. So that's a quotefrom the law or to treat, and
again, another quote, purporteddiscomfort or distress from a
discordance between the minorsex and asserted identity. So
the question is whether thatlaw violates the equal
protection clause of the 14thamendment of the US
Constitution. Uh , so this case, um, has been going on for
(11:00):
quite a while. As , as every ,you know, as we know cases go
on , um, typically for a whilebefore they reached the, the
Supreme Court of the UnitedStates, and , um, under the
past administration, the Bidenadministration actually
intervened in this case tochallenge the state's law,
meaning the Bidenadministration agreed with the
families that that brought thecase. Um, after the US Court of
(11:23):
Appeals for the Sixth Circuitupheld the Tennessee ban,
meaning they said to the state,yes, we, we agree that you can,
you can ban these , um, thiscare, both the Biden
administration and the familiesasked for the Supreme Court of
the United States to take thecase. So the important, one of
the key issues here for thecase is , um, that the Supreme
Court justices must determinewhat standard of review the
(11:46):
court should use. The courttypically treats
classifications like race,religion, national origin as
suspect, meaning that they'resubject to a higher level of
scrutiny. So if the courtdecides that the classification
that Tennessee is making isbased upon a suspect
classification, the court willscrutinize the law more
(12:06):
closely. However, if the courtdecides that the classification
is not suspect, the court willgive Tennessee more deference
with this state law. So theplaintiffs in this case are
arguing that the law should betreated with more skepticism
because they say it faciallydiscriminates on sex, whereas
Tennessee is arguing that it isnot a sex classification at
all. That instead the law isrestrictive relative to age
(12:30):
minors versus adults andpurpose no transitioning for
anyone. So those are thepositions of the two sides. And
the Supreme Court heard oralarguments in the case , um,
early December, December 4th.
And at that point we thought,okay, now we're just gonna wait
and get a decision later in theterm. But we did have some
(12:50):
additional activity , um, oncethe Trump administration took
over. Then in early February,the Trump administration
notified the Supreme Court thatin its view, the Tennessee law
does not violate theconstitution, meaning the Trump
administration changed thegovernment's position on this
pending case since the Bidenadministration had taken the
opposing position. So , um, butthe Trump administration did
(13:13):
encourage the court to decidethe case, so to go forth. So we
expect to see a decision , um,in June. Probably this will be
a late, a late decision in , inJune of this year. And if the
Supreme Court agrees withTennessee, we will likely see
more state laws restrictingprovision of an access to
gender affirming care. If thecourt instead sides with the
(13:35):
practitioners, we could eithersee the Tennessee law struck
down, or we could see the casereturned to the lower courts
for reconsideration. Eitherway, we expect this to be a
very important decisionrelative to provision of and
access to gender affirming carein the United States.
Speaker 3 (13:53):
And, and that's actually a great segue. You
bring up sort of the newpresidential administration,
and obviously even as itrelates to this one issue,
gender affirming care. Forthose of us who follow this
professionally, the day-to-daychanges are, are dramatic and
numerous, and, you know, we'resort of barely able to keep up
(14:14):
with everything and all thedifferent directions they're
pointing. So talk to us aboutsome of the major changes and
initiatives and , uh, projectsthat are coming out of the
Trump administration withrelation to gender
care.
Speaker 4 (14:30):
Certainly, and Adam, you're correct. This has been
day , almost daily activitysince the , uh, since Trump was
sworn into office. So , um,I'll , I'll do a , um, a linear
overview of what's happening,understanding that there's so
much that's still pending , um,at the point of recording this
podcast. And so we shouldexpect to see a lot of activity
in the next few months. But onJanuary 20th, the White House
(14:54):
issued an executive order thatwas titled, defending Women
from Gender Ideology Extremismand Restoring Biological Truth
to the Federal Government. Sothis is an executive order that
stated that it is the policy ofthe United States to recognize
only two sexes, male andfemale. And it, it specifically
said that the sexes are notchangeable. Um, in addition,
(15:17):
the executive order directedfederal agencies to enforce
laws protecting men and womenas biologically to state sexes
and to use the term sex and notgender. And the EO also
prohibited the federalgovernment from expending
federal funds to promote genderideology with the idea that
gender identity could differfrom biological sex. So that
(15:40):
was sort of, we heard a lot ofthis from , um, president Trump
when he was campaigning that,that this was an issue that was
important to him. But thisexecutive order was sort of the
first , um, official indicationthat he was planning to take
action on this topic. Um, itwas quickly followed with
within the next week of thesecond order came out January
(16:01):
28th, I believe , uh, wherethe, he issued another
executive order. This one more, uh, directed to healthcare
providers in particular. Sothis one was called Protecting
Children from Chemical andSurgical Mutilation , which is
the Trump administration'sdescription of gender
transition care. Um, so thisexecutive order directed the
(16:24):
federal agencies to takeappropriate steps, which they
called appropriate steps. Sonot necessarily delineated, but
to take appropriate steps toensure that institutions
receiving federal research oreducation grants, which would
be institutions like medicalschools and hospitals and
health systems. Um, so any ,anyone , any of those entities
receiving those federalresearch or education grants
(16:46):
need to end the chemical andsurgical mutilation of
children. So again, Trump isdirecting the agencies to take
steps to have anyone receivingthese funds and that type of
care. Um, what was reallyinteresting about this is they
defined in the executive orderchildren to be individuals
under 19 years of age, which,you know, in most states, the
(17:07):
age of majority is 18, andthat's what we typically see.
Um, 18 and under are considereda minor, but this defined
children is , uh, under 19. Sothere's a, you know, one year
classification of what we wouldtypical, typically think of an
adult that would be capturedunder this order. Um, the order
also terminated coverage forcertain gender affirming care
(17:27):
Government provided medicalbenefits and ordered , um,
health and human surgi servicesHHS to withdraw its March,
2022, guidance on genderaffirming care, civil rights,
and patient privacy. So thatwas guidance that came out
under the Biden administration, um, providing protections for
gender affirming care and , andthe individuals receiving it
(17:50):
and the order, or the executiveorder in indicated that HHS
should issue new guidance,protecting whistleblowers who
take action related to ensuringcompliance with this eo. So
pretty, pretty serious andsignificant there. Uh, finally,
the order directed theDepartment of Justice to
prioritize enforcement of anexisting federal law
(18:11):
prohibiting female genitalmutilation. That law was , um,
enacted years ago for otherpurposes, but it is clear that
the, the administration wantsto use it for this purpose to ,
um, address gender affirmingcare. So this order has
garnered a lot of attentionfrom healthcare providers who
(18:31):
are currently providing someform of gender affirming care.
And though the order is mostlyforward looking , you know,
almost everything is directingthe agencies to do something.
There's that, that one pieceabout an existing , uh, federal
law that I just mentioned. But, um, the rest of it is, is
largely forward-looking. Westill have seen healthcare
providers make some immediatechanges to the services that
(18:53):
they're providing. And as, as aresult, we've also seen some ,
um, significant litigationarise. So , um, on February
4th, so, so not very long afterthese two executive orders came
out, pflag, which is a nationalLGBT advocacy organization and
(19:14):
other plaintiffs who arelargely impacted individuals
receiving gender affirming careand their families filed suit
in the district court ofMaryland, arguing that these
executive orders areunconstitutional presidential
action, meaning that they arein excess of the president's
authority under Article two ofthe Constitution, and also that
they infringe upon powersreserved for a Congress. They
(19:36):
also said that the EOSdiscriminate on the basis of
sex and disability in violationof US laws, that the EOS
violate the Fifth Amendment'sequal protection and
substantive due processguarantees, and that the EOS
violate the First Amendment'sfree speech clause. So pretty,
pretty meaty claims. Um, the,the plaintiffs in this case
(19:57):
want the court to declare theEOS unconstitutional and
unlawful, and they have askedfor temporary, preliminary and
permanent injunctive relief tokeep the agencies from
implementing or enforcing theEOS or otherwise withholding
federal funding based upon thefact that a healthcare entity
provides gender affirming care.
So as of the report , uh, therecording of this podcast, the
(20:20):
court there has granted apreliminary injunction, and we
expect to see more activityfrom that case over the next
few weeks. Um, and so as Imentioned, that case is in
Maryland. We've got anotherimportant case on the other
coast. Um , this one's on the ,on the West coast arising out
of Washington. So this one wasfiled February 7th, and three
(20:41):
states and three physiciansfiled suit in the Western
District of Washington, whichis in Seattle, arguing that the
mua, the Mutilation Executiveorder set , second executive
order that we discussed, theysay it violates Fifth Amendment
equal protection by creatingclassifications based on
transgender sex status and sexand facially discriminating on
(21:02):
the basis of transgentransgender status and sex
without sufficient governmentinterest. Meaning there's no
reason for the government to bedoing this , um, these things
that they're doing. They saidthere's not sufficient
government interest. So theplaintiffs also alleged that
the order violates, again,separation of powers by
imposing conditions on thereceipt of federal funding by
medical institutions, despitethe fact that Congress never
(21:25):
authorized such a provision. Soagain, alleging overreach and
noting that Congress explicitlybarred medical institutions
from denying individuals accessto federally funded services
based on gender dysphoria undera federal law relative to
non-discrimination underfederal grants and programs.
Finally, the plaintiffs allegethat the order violates the
(21:47):
10th Amendment of theConstitution by regulating the
practice of me medicine withoutcongressional authorization. So
this case is also under , uh,preliminary injunction , um,
against the enforcement of themajority of the executive
orders. So two reallysignificant cases that, that
everyone should , who's tunedin this issue should watch. And
, um, because they'll, the ,the outcomes there will be
(22:09):
significant , um, as to, foranyone receiving or providing
gender affirming care. Butwe've also, in the meantime,
started to see some activity atthe agencies. So, again, recall
that the executive orders arethe Trump administration
directing the agencies to takeaction. So on March 5th, CMS,
which is the Center forMedicare and Medicaid Services,
(22:31):
issued a memo to healthcareproviders that CMS may, may, is
the term they use , may begintaking steps in the future to
align policy including CMSregulated provider requirements
and agreements with the highestquality medical evidence in the
treatment of the nation'schildren in order to protect
them from harmful, oftenirreversible mutilation,
(22:53):
including sterilizationpractices. So, directly lifting
some language from the eo, butagain, it's, it's this, this
memo from CMS said, CMS maybegin taking steps, and it also
says the memo that CMS willfollow any applicable
substantive and proceduralrequirements in order to take
(23:15):
any future action. So the, the, um, issuance of the memo ,
uh, drew a lot of attention,but the memo itself doesn't
specifically say, Hey, this is,this is what we're doing right
now. This is what's happeningat Singh . We may take these
steps in the future , um, andif we do so, we will do it the
right way. Is is what the, thesummary of the memo, and then
(23:37):
we saw two several other memoscome out right after that. So
the next day, hrsa, which isHealth Resources and Services
Administration, issued a letteraddressed to hospital
administrators, colleagues, andgrant recipients, indicating
that it would review its ownpolicies, grants, and programs.
In light of the concerns thatCMS discussed in its memo, and
(23:58):
again, use the language, we maybegin taking steps in the
future to appropriately updatepolicies to protect children
from chemical and surgicalmutilation. So again, still
forward-looking, and HRSA alsoincluded that same statement
about that it will follow anyapplicable substantive and
procedural requirements intaking future action.
Similarly, we got an , a memofrom samhsa, which is the
(24:22):
Substance Abuse and MentalHealth Services Administration.
This, this letter was addressedto colleagues and grantees,
indicated that it too wouldbegin reviewing its policies,
grants, and programs in lightof the concerns discussed by
CMS. And it also SAMSA notedthat it may consider sculping
delaying or potentiallycanceling new grants in the
(24:42):
future, depending on the natureof the work and any future
policy changes that SAMHSA maymake. So that certainly got a
lot of attention, but again,three memos from three
government agencies saying,this is what we may begin doing
in the future. So I guess thesummary here is we're seeing
daily activity, both in the, inthe cases that I mentioned and
, um, in communications fromthe agencies and expect that to
(25:05):
keep up.
Speaker 3 (25:07):
And that that may language that showed up in each
of those memos is veryinteresting because, you know,
on the one hand, you know,providers, our clients can
argue, well , that doesn'texactly provide clear guidance
as to what we should or shouldnot be doing unless you may
take steps. But also they may,they may, in some cases they
(25:29):
may and not, and it becomes aquestion of the agency's
enforcement discretion as well,when they may , when do they
start? Did they startyesterday? They start today ,
do they do it with onehospital? Do they not do it
with another one? And how dothey make these decisions? So
it's a very complex area. Sothat may bring us around to, to
my final question, which is, weare talking to clients, you
(25:51):
know, again, healthcareproviders every day. How do you
counsel them when dealing with,you know, this flurry of
activity, but also just thebasic uncertainty of, well, we
know these things havehappened, there are these other
things out here we don't knowwill happen, if they will
happen, when they will happen.
How do you counsel them aboutthose things?
Speaker 4 (26:13):
Well, Adam, that's the, what, $40 million
question. And , um, not to tobe self-promotional for
healthcare lawyers, but , uh,it's gonna sound that way. Uh ,
what we're saying is make sureyou're working with your legal
team, whether that's yourin-house counsel or your
outside counsel. The pendinglitigation is significant, both
the, the Supreme Court's caseand the, the , um, Washington
(26:37):
case and the Maryland case. Andwe certainly expect to see
continued activity from thefederal agencies, even though
those memos say may, it'scertainly an indication of
where they expect to go, andthe Trump administration has
been clear about where they'reintending to go. So the key is
to work hand in hand with yourlegal team to stay up to date ,
make sure you know the latest,and understand what services
(27:01):
you may be providing , um, andwhere those services fall along
the risk continuum. You know,you , I know because you work
in this area that , um, youknow this as, as well as I do,
that these providers are justtrying to provide good care to
all of their patientpopulation. At the end of the
day, they wanna make sure thatthey're providing good,
appropriate care to their , uh,to their patients. And so this
(27:26):
is a, this is a trickysituation because everything's
changing so rapidly. So thebest we can do at this point is
to say, pay attention. Knowwhat you're doing, and work
hand in hand with your legalteam to determine the best next
steps.
Speaker 3 (27:39):
Jenny , thank you so much for being with us today.
Just in, in wrapping up, thisis such a, an interesting area
because of the constantdevelopments, and it's so
important because as you said,while that 1.6 million that you
mentioned seems like a smallnumber, when you look at the
entire American population,that's still a lot of people
and it's all over the country,not just all concentrated in
(28:03):
one state, but they're, they'respread out in probably every
community in the nation. Um,and so thank you so much for,
for writing the article andthen being available to be a
part of this podcast. Um, justthank you for everyone
listening. This has been , uh,the American Health Lawyers
Association podcast on the top10 issues in health co
(28:27):
healthcare for 2025. And todaywe are focusing on gender
affirming care. So thank youeveryone, and goodbye.
Speaker 2 (28:40):
Thank you for listening. If you enjoyed this
episode, be sure to subscribeto ALA's speaking of Health
Law, wherever you get yourpodcasts. To learn more about a
HLA and the educationalresources available to the
health law community, visitAmerican health law.org.
Speaker 2 (00:04):
A HLA is pleased to present this special series
highlighting the top 10 healthlaw issues of 2025, where we
bring together thought leadersfrom across the health law
field to discuss the majortrends and developments of the
year. To stay updated on allthe major health law news,
subscribe to ALA's New HealthLaw Daily podcast, available
exclusively for premiummembers@americanhealthlaw.org
(00:27):
slash daily podcast .
Speaker 3 (00:35):
Welcome everyone to today's , uh, podcast. Uh, this
is on behalf of the AmericanHealth Lawyers Association, a
HLA and its PhysicianOrganization's Practice Group.
Uh, today is part of our serieson the top 10 issues in health
law for 2025. And today we'llbe talking about , uh, gender
(00:57):
affirming care and the issuesthat have happened in past
years and looking forward tothe coming year, the things
that we expect. And we're herewith , uh, my guest today , uh,
Jenny Nelson Carney fromEpstein Becker Green . Jenny ,
uh, thanks for being here today.
Speaker 4 (01:13):
Thanks so much, Adam. I'm really pleased to be
able to participate in thepodcast today. Um, and I'd be
remiss if I didn't mention toyou that I chair, ALA's Women's
Leadership Council, which is agreat organization. So for
anyone listening to this thatwould like to get involved,
please reach out on that. Uh ,but I'm excited to, to speak
with you, Adam, about , um,gender affirming care. Uh,
(01:34):
there's obviously a lot ofactivity happening.
Speaker 3 (01:38):
Sure. Um, and, and Jenny , did you wanna say
anything about your practice?
Um, then maybe I can introducemy before we get into the
substance.
Speaker 4 (01:46):
Sure. Sure. Uh, thank you for that. So, as you
mentioned, I'm a partner atEpstein Becker and Green. I'm a
healthcare regulatory attorney.
I work a lot with , uh,providers and trying to help
them provide good patient carefrom really intake to discharge
and get paid for it and, andcomply with all the regulations
(02:08):
at the state and federal level, um, that they're , that they
are , uh, subject to. So it's a, I've been practicing for 21
years and really enjoy the areaof healthcare law , um, and
have been a member of a LA thewhole time, which has been ,
uh, uh, really, reallyenjoyable.
Speaker 3 (02:27):
And , uh, just for everyone, my name is Adam
Lawton . I'm a shareholder atGreenburg Tarig in our Houston,
Texas office. I'm also ahealthcare attorney , um, doing
transactions and regulatorywork. I also work with many
healthcare providers , uh, manyof whom who are also involved
in this area of sort of genderaffirming care , uh, what we
(02:49):
think of as reproductive healthand advising and counseling
them on various regulatoryissues, especially these that
are changing at the state andfederal level , uh, it seems
like every day . So, Jenny , toto start our conversation, I
think so much of theconversation around this is,
you know, what jargon do we usein vocabulary and using right
(03:11):
words for things. So why don'tyou give us a good definition
of gender affirming care forpurposes of this discussion?
Speaker 4 (03:20):
Sure. Adam, that's a great place to start. So,
gender affirming care is reallyan umbrella term covering a
range of different medicalinterventions used to support
individuals where there is aconflict between the
individual's gender identityand the gender that they were
assigned at birth. That's,that's the definition that we
most typically see. So I thinkone of the misunderstandings ,
(03:43):
um, often is that genderaffirming care is just surgical
procedures, but it's reallyjust a broad category, and it
includes things like socialaffirmations , um, which may be
things like changes tosomeone's appearance, even down
to the clothes they wear anduse of pronouns. Uh, a second
part of that would bemedications like puberty
(04:04):
blockers and hormone therapy,which we're hearing a lot about
these days. Third would besurgical procedures. Um, and
then fourth is sort of the, thelegal piece of it where , um,
someone might change theirgender name on legal documents,
and, and that's often referredto as legal affirmation. So in
within each of thosecategories, you'll see some of
(04:25):
them , um, some forms of genderaffirming care are easily
reversible, like socialaffirmations and others are not
easily reversible, likesurgical procedures. Um, most
of the recent focus that we'veseen on gender affirming care
has been related to minors. Andso it's, I think it's important
to think through what thatmeans because gender affirming
(04:45):
care for minors is typically ,um, care that involves not just
the minor, but their parent orguardian and medical
professionals working togetherto make decisions about the
care that the minor receives. Iwill say it is more unusual for
permanent medical interventionsto occur before a transgender
person is old enough to giveinformed consent. So what we
(05:08):
usually see with minors who arereceiving gender affirming care
is prior to puberty, we seethings like the social
transition, like changingnames, pronouns, and clothing.
And then during or afterpuberty is when we might see
the availability of certaintypes of medical treatment. It
might just be medication atthat point . Um, I think, you
(05:28):
know, you see most of thesurgical interventions
happening with adults, but ,um, I think the other piece of
this that's important to to, tokeep in mind is that in the
United States, there's about1.6 million people, ages 13 and
older who identify astransgender. So while that is a
small number compared to thetotal population of the
(05:49):
country, it's under 1%, it's alarge enough number that many
healthcare providers are caringfor patients who are
transgender. Great .
Speaker 3 (05:57):
Thank you. And so, HLA identified gender affirming
care as one of its top 10issues for 2025. And you , uh,
wrote the article for HLA,which appeared in its magazine
, uh, in January of this year.
And that identification is sortof in part based on things that
may have happened , um, in2024, but also anticipating
(06:21):
things that are going to happenin 2025. So, just maybe to
start this question, what arethings that happened in 2024,
you know, and obviously some ofthem may bleed over in 2025.
What are some of the thingsthat happened in 2024 that
might have led to the HLAidentifying this as a top
issue?
Speaker 4 (06:42):
Yeah, that's a, it's an important , um, point and,
and a good question. So , um,although gender affirming care
has taken a really prominentposition in the beginning of
2025, you know, we're seeing itin the news daily, it was an
important issue , uh, animportant health law issue in,
in 2024 and, and really a fewyears before that as well. Um,
(07:04):
and, and when I say that,obviously it's always been an
important issue to peopleproviding the care and people
receiving the care, but it'sbecome more of a prominent
issue to the , to the generalpublic in the last few years.
And really , uh, it seems likethe reason for that is because
we've had a growing number ofstates that have moved to
either restrict or protectaccess to certain treatments
(07:26):
for gender diverse , uh, peoplevia state legislation. And most
of those laws, almost all ofthem, are focused at on minors.
Um, as of the recording of thispodcast, I believe we have 27
states that have enactedlegislation to restrict certain
forms of gender affirming carefor minors. Um, most of those
(07:46):
25 of them, I believe, bansurgery and medication and the
remaining to only ban surgery,but allow some forms of
medication. In addition, 24 ofthose states impose
professional or legal penaltieson healthcare practitioners who
provide minors with genderaffirming care. So again, what
(08:07):
I'm describing there is thestates that have taken a
restrictive position on thistype of care. On the other side
, uh, the remaining 23 statesplus District of Columbia and
five territories either have nolegislative restrictions on the
provision or access to genderaffirming care, or actively
protect access to it. Soclearly a ton of state activity
(08:29):
along this line that havereally brought this issue to
the public's attention. We'vealso seen activity from some
state medical boards to holdindividual providers
accountable for violations ofthe laws restricting provision
of gender affirming care. Um,so in particular, Texas law
directs that the Texas MedicalBoard, which oversees provision
(08:51):
of medical services in Texas ,um, the law directs that the
medical board there revokes themedical license or other
authorization to practicemedicine of a physician who
violates those provisions ofTexas state law that prohibit
gender transition medicalinterventions such as
surgeries, puberty blockers,and provision of ho hormones
for minors. Many of thosethings that, that we just
(09:13):
discussed. Um, another exampleof a state that does that is
Georgia, which holds physiciansadministratively accountable
for violations of some of therestrictive gender affirming
care laws. So we would expect,we are expecting to see
increased activity from themedical boards in states that
have taken a restrictiveposition on the provision of
gender affirming care. Those,those states have sort of been
(09:36):
out front on it, but we expectto see more of that activity in
the restrictive states goingforward.
Speaker 3 (09:43):
So one thing that, you know, just people, not even
lawyers calling this in thenews may have bird , uh, with
regards to, you know, whetheryou call it transgender care,
gender affirming care , um,that there are cases working
their way through the courts atvarious levels. And there's one
case, or at least one casebefore the Supreme Court , uh,
(10:03):
this past term, I believe it's, uh, called SC Meti . Mm-hmm
what that case is about, whereit stands and what's happening
there, what we expect?
Speaker 4 (10:14):
Sure. Yeah. It's a very important case , um, for
this area of, of medicine. So ,um, the Smei case was brought
by families of transgenderminors, and it revolves around
the question of whether aTennessee law, which prohibits
all medical treatments intendedto allow a minor to identify
with or live as a purportedidentity inconsistent with the
(10:38):
minor sex. So that's a quotefrom the law or to treat, and
again, another quote, purporteddiscomfort or distress from a
discordance between the minorsex and asserted identity. So
the question is whether thatlaw violates the equal
protection clause of the 14thamendment of the US
Constitution. Uh , so this case, um, has been going on for
(11:00):
quite a while. As , as every ,you know, as we know cases go
on , um, typically for a whilebefore they reached the, the
Supreme Court of the UnitedStates, and , um, under the
past administration, the Bidenadministration actually
intervened in this case tochallenge the state's law,
meaning the Bidenadministration agreed with the
families that that brought thecase. Um, after the US Court of
(11:23):
Appeals for the Sixth Circuitupheld the Tennessee ban,
meaning they said to the state,yes, we, we agree that you can,
you can ban these , um, thiscare, both the Biden
administration and the familiesasked for the Supreme Court of
the United States to take thecase. So the important, one of
the key issues here for thecase is , um, that the Supreme
Court justices must determinewhat standard of review the
(11:46):
court should use. The courttypically treats
classifications like race,religion, national origin as
suspect, meaning that they'resubject to a higher level of
scrutiny. So if the courtdecides that the classification
that Tennessee is making isbased upon a suspect
classification, the court willscrutinize the law more
(12:06):
closely. However, if the courtdecides that the classification
is not suspect, the court willgive Tennessee more deference
with this state law. So theplaintiffs in this case are
arguing that the law should betreated with more skepticism
because they say it faciallydiscriminates on sex, whereas
Tennessee is arguing that it isnot a sex classification at
all. That instead the law isrestrictive relative to age
(12:30):
minors versus adults andpurpose no transitioning for
anyone. So those are thepositions of the two sides. And
the Supreme Court heard oralarguments in the case , um,
early December, December 4th.
And at that point we thought,okay, now we're just gonna wait
and get a decision later in theterm. But we did have some
(12:50):
additional activity , um, oncethe Trump administration took
over. Then in early February,the Trump administration
notified the Supreme Court thatin its view, the Tennessee law
does not violate theconstitution, meaning the Trump
administration changed thegovernment's position on this
pending case since the Bidenadministration had taken the
opposing position. So , um, butthe Trump administration did
(13:13):
encourage the court to decidethe case, so to go forth. So we
expect to see a decision , um,in June. Probably this will be
a late, a late decision in , inJune of this year. And if the
Supreme Court agrees withTennessee, we will likely see
more state laws restrictingprovision of an access to
gender affirming care. If thecourt instead sides with the
(13:35):
practitioners, we could eithersee the Tennessee law struck
down, or we could see the casereturned to the lower courts
for reconsideration. Eitherway, we expect this to be a
very important decisionrelative to provision of and
access to gender affirming carein the United States.
Speaker 3 (13:53):
And, and that's actually a great segue. You
bring up sort of the newpresidential administration,
and obviously even as itrelates to this one issue,
gender affirming care. Forthose of us who follow this
professionally, the day-to-daychanges are, are dramatic and
numerous, and, you know, we'resort of barely able to keep up
(14:14):
with everything and all thedifferent directions they're
pointing. So talk to us aboutsome of the major changes and
initiatives and , uh, projectsthat are coming out of the
Trump administration withrelation to gender
care.
Speaker 4 (14:30):
Certainly, and Adam, you're correct. This has been
day , almost daily activitysince the , uh, since Trump was
sworn into office. So , um,I'll , I'll do a , um, a linear
overview of what's happening,understanding that there's so
much that's still pending , um,at the point of recording this
podcast. And so we shouldexpect to see a lot of activity
in the next few months. But onJanuary 20th, the White House
(14:54):
issued an executive order thatwas titled, defending Women
from Gender Ideology Extremismand Restoring Biological Truth
to the Federal Government. Sothis is an executive order that
stated that it is the policy ofthe United States to recognize
only two sexes, male andfemale. And it, it specifically
said that the sexes are notchangeable. Um, in addition,
(15:17):
the executive order directedfederal agencies to enforce
laws protecting men and womenas biologically to state sexes
and to use the term sex and notgender. And the EO also
prohibited the federalgovernment from expending
federal funds to promote genderideology with the idea that
gender identity could differfrom biological sex. So that
(15:40):
was sort of, we heard a lot ofthis from , um, president Trump
when he was campaigning that,that this was an issue that was
important to him. But thisexecutive order was sort of the
first , um, official indicationthat he was planning to take
action on this topic. Um, itwas quickly followed with
within the next week of thesecond order came out January
(16:01):
28th, I believe , uh, wherethe, he issued another
executive order. This one more, uh, directed to healthcare
providers in particular. Sothis one was called Protecting
Children from Chemical andSurgical Mutilation , which is
the Trump administration'sdescription of gender
transition care. Um, so thisexecutive order directed the
(16:24):
federal agencies to takeappropriate steps, which they
called appropriate steps. Sonot necessarily delineated, but
to take appropriate steps toensure that institutions
receiving federal research oreducation grants, which would
be institutions like medicalschools and hospitals and
health systems. Um, so any ,anyone , any of those entities
receiving those federalresearch or education grants
(16:46):
need to end the chemical andsurgical mutilation of
children. So again, Trump isdirecting the agencies to take
steps to have anyone receivingthese funds and that type of
care. Um, what was reallyinteresting about this is they
defined in the executive orderchildren to be individuals
under 19 years of age, which,you know, in most states, the
(17:07):
age of majority is 18, andthat's what we typically see.
Um, 18 and under are considereda minor, but this defined
children is , uh, under 19. Sothere's a, you know, one year
classification of what we wouldtypical, typically think of an
adult that would be capturedunder this order. Um, the order
also terminated coverage forcertain gender affirming care
(17:27):
Government provided medicalbenefits and ordered , um,
health and human surgi servicesHHS to withdraw its March,
2022, guidance on genderaffirming care, civil rights,
and patient privacy. So thatwas guidance that came out
under the Biden administration, um, providing protections for
gender affirming care and , andthe individuals receiving it
(17:50):
and the order, or the executiveorder in indicated that HHS
should issue new guidance,protecting whistleblowers who
take action related to ensuringcompliance with this eo. So
pretty, pretty serious andsignificant there. Uh, finally,
the order directed theDepartment of Justice to
prioritize enforcement of anexisting federal law
(18:11):
prohibiting female genitalmutilation. That law was , um,
enacted years ago for otherpurposes, but it is clear that
the, the administration wantsto use it for this purpose to ,
um, address gender affirmingcare. So this order has
garnered a lot of attentionfrom healthcare providers who
(18:31):
are currently providing someform of gender affirming care.
And though the order is mostlyforward looking , you know,
almost everything is directingthe agencies to do something.
There's that, that one pieceabout an existing , uh, federal
law that I just mentioned. But, um, the rest of it is, is
largely forward-looking. Westill have seen healthcare
providers make some immediatechanges to the services that
(18:53):
they're providing. And as, as aresult, we've also seen some ,
um, significant litigationarise. So , um, on February
4th, so, so not very long afterthese two executive orders came
out, pflag, which is a nationalLGBT advocacy organization and
(19:14):
other plaintiffs who arelargely impacted individuals
receiving gender affirming careand their families filed suit
in the district court ofMaryland, arguing that these
executive orders areunconstitutional presidential
action, meaning that they arein excess of the president's
authority under Article two ofthe Constitution, and also that
they infringe upon powersreserved for a Congress. They
(19:36):
also said that the EOSdiscriminate on the basis of
sex and disability in violationof US laws, that the EOS
violate the Fifth Amendment'sequal protection and
substantive due processguarantees, and that the EOS
violate the First Amendment'sfree speech clause. So pretty,
pretty meaty claims. Um, the,the plaintiffs in this case
(19:57):
want the court to declare theEOS unconstitutional and
unlawful, and they have askedfor temporary, preliminary and
permanent injunctive relief tokeep the agencies from
implementing or enforcing theEOS or otherwise withholding
federal funding based upon thefact that a healthcare entity
provides gender affirming care.
So as of the report , uh, therecording of this podcast, the
(20:20):
court there has granted apreliminary injunction, and we
expect to see more activityfrom that case over the next
few weeks. Um, and so as Imentioned, that case is in
Maryland. We've got anotherimportant case on the other
coast. Um , this one's on the ,on the West coast arising out
of Washington. So this one wasfiled February 7th, and three
(20:41):
states and three physiciansfiled suit in the Western
District of Washington, whichis in Seattle, arguing that the
mua, the Mutilation Executiveorder set , second executive
order that we discussed, theysay it violates Fifth Amendment
equal protection by creatingclassifications based on
transgender sex status and sexand facially discriminating on
(21:02):
the basis of transgentransgender status and sex
without sufficient governmentinterest. Meaning there's no
reason for the government to bedoing this , um, these things
that they're doing. They saidthere's not sufficient
government interest. So theplaintiffs also alleged that
the order violates, again,separation of powers by
imposing conditions on thereceipt of federal funding by
medical institutions, despitethe fact that Congress never
(21:25):
authorized such a provision. Soagain, alleging overreach and
noting that Congress explicitlybarred medical institutions
from denying individuals accessto federally funded services
based on gender dysphoria undera federal law relative to
non-discrimination underfederal grants and programs.
Finally, the plaintiffs allegethat the order violates the
(21:47):
10th Amendment of theConstitution by regulating the
practice of me medicine withoutcongressional authorization. So
this case is also under , uh,preliminary injunction , um,
against the enforcement of themajority of the executive
orders. So two reallysignificant cases that, that
everyone should , who's tunedin this issue should watch. And
, um, because they'll, the ,the outcomes there will be
(22:09):
significant , um, as to, foranyone receiving or providing
gender affirming care. Butwe've also, in the meantime,
started to see some activity atthe agencies. So, again, recall
that the executive orders arethe Trump administration
directing the agencies to takeaction. So on March 5th, CMS,
which is the Center forMedicare and Medicaid Services,
(22:31):
issued a memo to healthcareproviders that CMS may, may, is
the term they use , may begintaking steps in the future to
align policy including CMSregulated provider requirements
and agreements with the highestquality medical evidence in the
treatment of the nation'schildren in order to protect
them from harmful, oftenirreversible mutilation,
(22:53):
including sterilizationpractices. So, directly lifting
some language from the eo, butagain, it's, it's this, this
memo from CMS said, CMS maybegin taking steps, and it also
says the memo that CMS willfollow any applicable
substantive and proceduralrequirements in order to take
(23:15):
any future action. So the, the, um, issuance of the memo ,
uh, drew a lot of attention,but the memo itself doesn't
specifically say, Hey, this is,this is what we're doing right
now. This is what's happeningat Singh . We may take these
steps in the future , um, andif we do so, we will do it the
right way. Is is what the, thesummary of the memo, and then
(23:37):
we saw two several other memoscome out right after that. So
the next day, hrsa, which isHealth Resources and Services
Administration, issued a letteraddressed to hospital
administrators, colleagues, andgrant recipients, indicating
that it would review its ownpolicies, grants, and programs.
In light of the concerns thatCMS discussed in its memo, and
(23:58):
again, use the language, we maybegin taking steps in the
future to appropriately updatepolicies to protect children
from chemical and surgicalmutilation. So again, still
forward-looking, and HRSA alsoincluded that same statement
about that it will follow anyapplicable substantive and
procedural requirements intaking future action.
Similarly, we got an , a memofrom samhsa, which is the
(24:22):
Substance Abuse and MentalHealth Services Administration.
This, this letter was addressedto colleagues and grantees,
indicated that it too wouldbegin reviewing its policies,
grants, and programs in lightof the concerns discussed by
CMS. And it also SAMSA notedthat it may consider sculping
delaying or potentiallycanceling new grants in the
(24:42):
future, depending on the natureof the work and any future
policy changes that SAMHSA maymake. So that certainly got a
lot of attention, but again,three memos from three
government agencies saying,this is what we may begin doing
in the future. So I guess thesummary here is we're seeing
daily activity, both in the, inthe cases that I mentioned and
, um, in communications fromthe agencies and expect that to
(25:05):
keep up.
Speaker 3 (25:07):
And that that may language that showed up in each
of those memos is veryinteresting because, you know,
on the one hand, you know,providers, our clients can
argue, well , that doesn'texactly provide clear guidance
as to what we should or shouldnot be doing unless you may
take steps. But also they may,they may, in some cases they
(25:29):
may and not, and it becomes aquestion of the agency's
enforcement discretion as well,when they may , when do they
start? Did they startyesterday? They start today ,
do they do it with onehospital? Do they not do it
with another one? And how dothey make these decisions? So
it's a very complex area. Sothat may bring us around to, to
my final question, which is, weare talking to clients, you
(25:51):
know, again, healthcareproviders every day. How do you
counsel them when dealing with,you know, this flurry of
activity, but also just thebasic uncertainty of, well, we
know these things havehappened, there are these other
things out here we don't knowwill happen, if they will
happen, when they will happen.
How do you counsel them aboutthose things?
Speaker 4 (26:13):
Well, Adam, that's the, what, $40 million
question. And , um, not to tobe self-promotional for
healthcare lawyers, but , uh,it's gonna sound that way. Uh ,
what we're saying is make sureyou're working with your legal
team, whether that's yourin-house counsel or your
outside counsel. The pendinglitigation is significant, both
the, the Supreme Court's caseand the, the , um, Washington
(26:37):
case and the Maryland case. Andwe certainly expect to see
continued activity from thefederal agencies, even though
those memos say may, it'scertainly an indication of
where they expect to go, andthe Trump administration has
been clear about where they'reintending to go. So the key is
to work hand in hand with yourlegal team to stay up to date ,
make sure you know the latest,and understand what services
(27:01):
you may be providing , um, andwhere those services fall along
the risk continuum. You know,you , I know because you work
in this area that , um, youknow this as, as well as I do,
that these providers are justtrying to provide good care to
all of their patientpopulation. At the end of the
day, they wanna make sure thatthey're providing good,
appropriate care to their , uh,to their patients. And so this
(27:26):
is a, this is a trickysituation because everything's
changing so rapidly. So thebest we can do at this point is
to say, pay attention. Knowwhat you're doing, and work
hand in hand with your legalteam to determine the best next
steps.
Speaker 3 (27:39):
Jenny , thank you so much for being with us today.
Just in, in wrapping up, thisis such a, an interesting area
because of the constantdevelopments, and it's so
important because as you said,while that 1.6 million that you
mentioned seems like a smallnumber, when you look at the
entire American population,that's still a lot of people
and it's all over the country,not just all concentrated in
(28:03):
one state, but they're, they'respread out in probably every
community in the nation. Um,and so thank you so much for,
for writing the article andthen being available to be a
part of this podcast. Um, justthank you for everyone
listening. This has been , uh,the American Health Lawyers
Association podcast on the top10 issues in health co
(28:27):
healthcare for 2025. And todaywe are focusing on gender
affirming care. So thank youeveryone, and goodbye.
Speaker 2 (28:40):
Thank you for listening. If you enjoyed this
episode, be sure to subscribeto ALA's speaking of Health
Law, wherever you get yourpodcasts. To learn more about a
HLA and the educationalresources available to the
health law community, visitAmerican health law.org.
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