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Top Ten 2025: Gender Affirming Care—Outlook

• American Health Law Association

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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:

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Speaker 2:

A HLA is pleased to present this special series highlighting the top 10 health law issues of 2025, where we bring together thought leaders from across the health law field to discuss the major trends and developments of the year. To stay updated on all the major health law news, subscribe to ALA's New Health Law Daily podcast, available exclusively for premium members@americanhealthlaw.org slash daily podcast .

Speaker 3:

Welcome everyone to today's , uh, podcast. Uh, this is on behalf of the American Health Lawyers Association, a HLA and its Physician Organization's Practice Group. Uh, today is part of our series on the top 10 issues in health law for 2025. And today we'll be talking about , uh, gender affirming care and the issues that have happened in past years and looking forward to the coming year, the things that we expect. And we're here with , uh, my guest today , uh, Jenny Nelson Carney from Epstein Becker Green . Jenny , uh, thanks for being here today .

Speaker 4:

Thanks so much, Adam. I'm really pleased to be able to participate in the podcast today. Um, and I'd be remiss if I didn't mention to you that I chair, ALA's Women's Leadership Council, which is a great organization. So for anyone listening to this that would 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, there's obviously a lot of activity happening.

Speaker 3:

Sure. Um, and, and Jenny , did you wanna say anything about your practice? Um, then maybe I can introduce my before we get into the substance.

Speaker 4:

Sure. Sure. Uh, thank you for that. So, as you mentioned, I'm a partner at Epstein Becker and Green. I'm a healthcare regulatory attorney. I work a lot with , uh, providers and trying to help them provide good patient care from really intake to discharge and get paid for it and, and comply with all the regulations 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 area of healthcare law , um, and have been a member of a LA the whole time, which has been , uh, uh, really, really enjoyable.

Speaker 3:

And , uh, just for everyone, my name is Adam Lawton . I'm a shareholder at Greenburg Tarig in our Houston, Texas office. I'm also a healthcare attorney , um, doing transactions and regulatory work. I also work with many healthcare providers , uh, many of whom who are also involved in this area of sort of gender affirming care , uh, what we think of as reproductive health and advising and counseling them on various regulatory issues, especially these that are changing at the state and federal level , uh, it seems like every day . So, Jenny , to to start our conversation, I think so much of the conversation around this is, you know, what jargon do we use in vocabulary and using right words for things. So why don't you give us a good definition of gender affirming care for purposes of this discussion?

Speaker 4:

Sure. Adam, that's a great place to start. So, gender affirming care is really an umbrella term covering a range of different medical interventions used to support individuals where there is a conflict between the individual's gender identity and the gender that they were assigned at birth. That's, that's the definition that we most typically see. So I think one of the misunderstandings , um, often is that gender affirming care is just surgical procedures, but it's really just a broad category, and it includes things like social affirmations , um, which may be things like changes to someone's appearance, even down to the clothes they wear and use of pronouns. Uh, a second part of that would be medications like puberty blockers and hormone therapy, which we're hearing a lot about these days. Third would be surgical procedures. Um, and then fourth is sort of the, the legal piece of it where , um, someone might change their gender name on legal documents, and, and that's often referred to as legal affirmation. So in within each of those categories, you'll see some of them , um, some forms of gender affirming care are easily reversible, like social affirmations and others are not easily reversible, like surgical procedures. Um, most of the recent focus that we've seen on gender affirming care has been related to minors. And so it's, I think it's important to think through what that means because gender affirming care for minors is typically , um, care that involves not just the minor, but their parent or guardian and medical professionals working together to make decisions about the care that the minor receives. I will say it is more unusual for permanent medical interventions to occur before a transgender person is old enough to give informed consent. So what we usually see with minors who are receiving gender affirming care is prior to puberty, we see things like the social transition, like changing names, pronouns, and clothing. And then during or after puberty is when we might see the availability of certain types of medical treatment. It might just be medication at that point . Um, I think, you know, you see most of the surgical interventions happening with adults, but , um, I think the other piece of this that's important to to, to keep in mind is that in the United States, there's about 1.6 million people, ages 13 and older who identify as transgender. So while that is a small number compared to the total population of the country, it's under 1%, it's a large enough number that many healthcare providers are caring for patients who are transgender. Great .

Speaker 3:

Thank you. And so, HLA identified gender affirming care as one of its top 10 issues 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 sort of in part based on things that may have happened , um, in 2024, but also anticipating things that are going to happen in 2025. So, just maybe to start this question, what are things that happened in 2024, you know, and obviously some of them may bleed over in 2025. What are some of the things that happened in 2024 that might have led to the HLA identifying this as a top issue?

Speaker 4:

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 prominent position in the beginning of 2025, you know, we're seeing it in the news daily, it was an important issue , uh, an important health law issue in, in 2024 and, and really a few years before that as well. Um, and, and when I say that, obviously it's always been an important issue to people providing the care and people receiving the care, but it's become more of a prominent issue to the , to the general public in the last few years. And really , uh, it seems like the reason for that is because we've had a growing number of states that have moved to either restrict or protect access to certain treatments for gender diverse , uh, people via state legislation. And most of those laws, almost all of them, are focused at on minors. Um, as of the recording of this podcast, I believe we have 27 states that have enacted legislation to restrict certain forms of gender affirming care for minors. Um, most of those 25 of them, I believe, ban surgery and medication and the remaining to only ban surgery, but allow some forms of medication. In addition, 24 of those states impose professional or legal penalties on healthcare practitioners who provide minors with gender affirming care. So again, what I'm describing there is the states that have taken a restrictive position on this type of care. On the other side , uh, the remaining 23 states plus District of Columbia and five territories either have no legislative restrictions on the provision or access to gender affirming care, or actively protect access to it. So clearly a ton of state activity along this line that have really brought this issue to the public's attention. We've also seen activity from some state medical boards to hold individual providers accountable for violations of the laws restricting provision of gender affirming care. Um, so in particular, Texas law directs that the Texas Medical Board, which oversees provision of medical services in Texas , um, the law directs that the medical board there revokes the medical license or other authorization to practice medicine of a physician who violates those provisions of Texas state law that prohibit gender transition medical interventions such as surgeries, puberty blockers, and provision of ho hormones for minors. Many of those things that, that we just discussed. Um, another example of a state that does that is Georgia, which holds physicians administratively accountable for violations of some of the restrictive gender affirming care laws. So we would expect, we are expecting to see increased activity from the medical boards in states that have taken a restrictive position on the provision of gender affirming care. Those, those states have sort of been out front on it, but we expect to see more of that activity in the restrictive states going forward.

Speaker 3:

So one thing that, you know, just people, not even lawyers calling this in the news may have bird , uh, with regards to, you know, whether you call it transgender care, gender affirming care , um, that there are cases working their way through the courts at various levels. And there's one case, or at least one case before the Supreme Court , uh, this past term, I believe it's , uh, called SC Meti . Mm-hmm <affirmative> . Uh , could you give us a , a brief overview of what that case is about, where it stands and what's happening there, what we expect?

Speaker 4:

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 transgender minors, and it revolves around the question of whether a Tennessee law, which prohibits all medical treatments intended to allow a minor to identify with or live as a purported identity inconsistent with the minor sex. So that's a quote from the law or to treat, and again, another quote, purported discomfort or distress from a discordance between the minor sex and asserted identity. So the question is whether that law violates the equal protection clause of the 14th amendment of the US Constitution. Uh , so this case , um, has been going on for quite a while. As , as every , you know, as we know cases go on , um, typically for a while before they reached the, the Supreme Court of the United States, and , um, under the past administration, the Biden administration actually intervened in this case to challenge the state's law, meaning the Biden administration agreed with the families that that brought the case. Um, after the US Court of Appeals for the Sixth Circuit upheld the Tennessee ban, meaning they said to the state, yes, we, we agree that you can, you can ban these , um, this care, both the Biden administration and the families asked for the Supreme Court of the United States to take the case. So the important, one of the key issues here for the case is , um, that the Supreme Court justices must determine what standard of review the court should use. The court typically treats classifications like race, religion, national origin as suspect, meaning that they're subject to a higher level of scrutiny. So if the court decides that the classification that Tennessee is making is based upon a suspect classification, the court will scrutinize the law more closely. However, if the court decides that the classification is not suspect, the court will give Tennessee more deference with this state law. So the plaintiffs in this case are arguing that the law should be treated with more skepticism because they say it facially discriminates on sex, whereas Tennessee is arguing that it is not a sex classification at all. That instead the law is restrictive relative to age minors versus adults and purpose no transitioning for anyone. So those are the positions of the two sides. And the Supreme Court heard oral arguments 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 the term. But we did have some additional activity , um, once the Trump administration took over. Then in early February, the Trump administration notified the Supreme Court that in its view, the Tennessee law does not violate the constitution, meaning the Trump administration changed the government's position on this pending case since the Biden administration had taken the opposing position. So , um, but the Trump administration did encourage the court to decide the 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 , in June of this year. And if the Supreme Court agrees with Tennessee, we will likely see more state laws restricting provision of an access to gender affirming care. If the court instead sides with the practitioners, we could either see the Tennessee law struck down, or we could see the case returned to the lower courts for reconsideration. Either way, we expect this to be a very important decision relative to provision of and access to gender affirming care in the United States.

Speaker 3:

And, and that's actually a great segue. You bring up sort of the new presidential administration, and obviously even as it relates to this one issue, gender affirming care. For those of us who follow this professionally, the day-to-day changes are, are dramatic and numerous, and, you know, we're sort of barely able to keep up with everything and all the different directions they're pointing. So talk to us about some of the major changes and initiatives and , uh, projects that are coming out of the Trump administration with relation to gender <inaudible> care.

Speaker 4:

Certainly, and Adam, you're correct. This has been day , almost daily activity since 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 should expect to see a lot of activity in the next few months. But on January 20th, the White House issued an executive order that was titled, defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government. So this is an executive order that stated that it is the policy of the United States to recognize only two sexes, male and female. And it, it specifically said that the sexes are not changeable. Um, in addition, the executive order directed federal agencies to enforce laws protecting men and women as biologically to state sexes and to use the term sex and not gender. And the EO also prohibited the federal government from expending federal funds to promote gender ideology with the idea that gender identity could differ from biological sex. So that was sort of, we heard a lot of this from , um, president Trump when he was campaigning that, that this was an issue that was important to him. But this executive order was sort of the first , um, official indication that he was planning to take action on this topic. Um, it was quickly followed with within the next week of the second order came out January 28th, I believe , uh, where the, he issued another executive order. This one more , uh, directed to healthcare providers in particular. So this one was called Protecting Children from Chemical and Surgical Mutilation , which is the Trump administration's description of gender transition care. Um, so this executive order directed the federal agencies to take appropriate steps, which they called appropriate steps. So not necessarily delineated, but to take appropriate steps to ensure that institutions receiving federal research or education grants, which would be institutions like medical schools and hospitals and health systems. Um, so any , anyone , any of those entities receiving those federal research or education grants need to end the chemical and surgical mutilation of children. So again, Trump is directing the agencies to take steps to have anyone receiving these funds and that type of care. Um, what was really interesting about this is they defined in the executive order children to be individuals under 19 years of age, which, you know, in most states, the age of majority is 18, and that's what we typically see. Um, 18 and under are considered a minor, but this defined children is , uh, under 19. So there's a, you know, one year classification of what we would typical, typically think of an adult that would be captured under this order. Um, the order also terminated coverage for certain gender affirming care Government provided medical benefits and ordered , um, health and human surgi services HHS to withdraw its March, 2022, guidance on gender affirming care, civil rights, and patient privacy. So that was guidance that came out under the Biden administration , um, providing protections for gender affirming care and , and the individuals receiving it and the order, or the executive order in indicated that HHS should issue new guidance, protecting whistleblowers who take action related to ensuring compliance with this eo. So pretty, pretty serious and significant there. Uh, finally, the order directed the Department of Justice to prioritize enforcement of an existing federal law prohibiting female genital mutilation. That law was , um, enacted years ago for other purposes, but it is clear that the, the administration wants to use it for this purpose to , um, address gender affirming care. So this order has garnered a lot of attention from healthcare providers who are currently providing some form of gender affirming care. And though the order is mostly forward looking , you know, almost everything is directing the agencies to do something. There's that, that one piece about an existing , uh, federal law that I just mentioned. But , um, the rest of it is, is largely forward-looking. We still have seen healthcare providers make some immediate changes to the services that they're providing. And as, as a result, we've also seen some , um, significant litigation arise. So , um, on February 4th, so, so not very long after these two executive orders came out, pflag, which is a national LGBT advocacy organization and other plaintiffs who are largely impacted individuals receiving gender affirming care and their families filed suit in the district court of Maryland, arguing that these executive orders are unconstitutional presidential action, meaning that they are in excess of the president's authority under Article two of the Constitution, and also that they infringe upon powers reserved for a Congress. They also said that the EOS discriminate on the basis of sex and disability in violation of US laws, that the EOS violate the Fifth Amendment's equal protection and substantive due process guarantees, and that the EOS violate the First Amendment's free speech clause. So pretty, pretty meaty claims. Um, the, the plaintiffs in this case want the court to declare the EOS unconstitutional and unlawful, and they have asked for temporary, preliminary and permanent injunctive relief to keep the agencies from implementing or enforcing the EOS or otherwise withholding federal funding based upon the fact that a healthcare entity provides gender affirming care. So as of the report , uh, the recording of this podcast, the court there has granted a preliminary injunction, and we expect to see more activity from that case over the next few weeks. Um, and so as I mentioned, that case is in Maryland. We've got another important case on the other coast. Um , this one's on the , on the West coast arising out of Washington. So this one was filed February 7th, and three states and three physicians filed suit in the Western District of Washington, which is in Seattle, arguing that the mua, the Mutilation Executive order set , second executive order that we discussed, they say it violates Fifth Amendment equal protection by creating classifications based on transgender sex status and sex and facially discriminating on the basis of transgen transgender status and sex without sufficient government interest. Meaning there's no reason for the government to be doing this , um, these things that they're doing. They said there's not sufficient government interest. So the plaintiffs also alleged that the order violates, again, separation of powers by imposing conditions on the receipt of federal funding by medical institutions, despite the fact that Congress never authorized such a provision. So again, alleging overreach and noting that Congress explicitly barred medical institutions from denying individuals access to federally funded services based on gender dysphoria under a federal law relative to non-discrimination under federal grants and programs. Finally, the plaintiffs allege that the order violates the 10th Amendment of the Constitution by regulating the practice of me medicine without congressional authorization. So this case is also under , uh, preliminary injunction , um, against the enforcement of the majority of the executive orders. So two really significant cases that, that everyone should , who's tuned in this issue should watch. And , um, because they'll, the , the outcomes there will be significant , um, as to, for anyone receiving or providing gender affirming care. But we've also, in the meantime, started to see some activity at the agencies. So, again, recall that the executive orders are the Trump administration directing the agencies to take action. So on March 5th, CMS, which is the Center for Medicare and Medicaid Services, issued a memo to healthcare providers that CMS may, may, is the term they use , may begin taking steps in the future to align policy including CMS regulated provider requirements and agreements with the highest quality medical evidence in the treatment of the nation's children in order to protect them from harmful, often irreversible mutilation, including sterilization practices. So, directly lifting some language from the eo, but again, it's, it's this, this memo from CMS said, CMS may begin taking steps, and it also says the memo that CMS will follow any applicable substantive and procedural requirements in order to take 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 happening at Singh . We may take these steps in the future , um, and if we do so, we will do it the right way. Is is what the, the summary of the memo, and then we saw two several other memos come out right after that. So the next day, hrsa, which is Health Resources and Services Administration, issued a letter addressed to hospital administrators, colleagues, and grant recipients, indicating that it would review its own policies, grants, and programs. In light of the concerns that CMS discussed in its memo, and again, use the language, we may begin taking steps in the future to appropriately update policies to protect children from chemical and surgical mutilation. So again, still forward-looking, and HRSA also included that same statement about that it will follow any applicable substantive and procedural requirements in taking future action. Similarly, we got an , a memo from samhsa, which is the Substance Abuse and Mental Health Services Administration. This, this letter was addressed to colleagues and grantees, indicated that it too would begin reviewing its policies, grants, and programs in light of the concerns discussed by CMS. And it also SAMSA noted that it may consider sculping delaying or potentially canceling new grants in the future, depending on the nature of the work and any future policy changes that SAMHSA may make. 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 the summary here is we're seeing daily activity, both in the, in the cases that I mentioned and , um, in communications from the agencies and expect that to keep up.

Speaker 3:

And that that may language that showed up in each of those memos is very interesting because, you know, on the one hand, you know, providers, our clients can argue, well , that doesn't exactly provide clear guidance as to what we should or should not be doing unless you may take steps. But also they may, they may, in some cases they may and not, and it becomes a question of the agency's enforcement discretion as well, when they may , when do they start? Did they start yesterday? They start today , do they do it with one hospital? Do they not do it with another one? And how do they make these decisions? So it's a very complex area. So that may bring us around to, to my final question, which is, we are talking to clients, you know, again, healthcare providers every day. How do you counsel them when dealing with, you know, this flurry of activity, but also just the basic uncertainty of, well, we know these things have happened, there are these other things out here we don't know will happen, if they will happen, when they will happen. How do you counsel them about those things?

Speaker 4:

Well, Adam, that's the, what, $40 million question. And , um, not to to be self-promotional for healthcare lawyers, but , uh, it's gonna sound that way. Uh , what we're saying is make sure you're working with your legal team, whether that's your in-house counsel or your outside counsel. The pending litigation is significant, both the, the Supreme Court's case and the, the , um, Washington case and the Maryland case. And we certainly expect to see continued activity from the federal agencies, even though those memos say may, it's certainly an indication of where they expect to go, and the Trump administration has been clear about where they're intending to go. So the key is to work hand in hand with your legal team to stay up to date , make sure you know the latest, and understand what services you may be providing , um, and where those services fall along the risk continuum. You know, you , I know because you work in this area that , um, you know this as, as well as I do, that these providers are just trying to provide good care to all of their patient population. At the end of the day, they wanna make sure that they're providing good, appropriate care to their , uh, to their patients. And so this is a, this is a tricky situation because everything's changing so rapidly. So the best we can do at this point is to say, pay attention. Know what you're doing, and work hand in hand with your legal team to determine the best next steps.

Speaker 3:

Jenny , thank you so much for being with us today. Just in, in wrapping up, this is such a, an interesting area because of the constant developments, and it's so important because as you said, while that 1.6 million that you mentioned seems like a small number, 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 one state, but they're, they're spread out in probably every community in the nation. Um, and so thank you so much for, for writing the article and then being available to be a part of this podcast. Um, just thank you for everyone listening. This has been , uh, the American Health Lawyers Association podcast on the top 10 issues in health co healthcare for 2025. And today we are focusing on gender affirming care. So thank you everyone, and goodbye.

Speaker 2:

Thank you for listening. If you enjoyed this episode, be sure to subscribe to ALA's speaking of Health Law, wherever you get your podcasts. To learn more about a HLA and the educational resources available to the health law community, visit American health law.org.