Some Hospitals Pausing Youth Transgender Care Are Skirting Law

In the last five years, 27 states have passed bans prohibiting transgender minors from receiving gender-affirming care. These treatments include mental health counseling, medication to inhibit or assist with the development of various physical characteristics during puberty, and, in extreme cases, limited surgical intervention—care that the best available medical evidence generally supports. Many transgender children and their parents have fled these states, seeking care elsewhere in the country. Luckily, many other states have passed safe harbor laws, and families that moved could find refuge, assistance, and support for their children.

Or so they thought. Within a few years of moving, many hospitals in their new home states unethically and illegally ceased providing gender-affirming care.

The hospitals’ decision was a response to the barrage of measures President Donald Trump took targeting transgender people. Among these was Executive Order 14187 “Protecting Children from Chemical and Surgical Mutilation.” This order instructs federal agencies to punish medical institutions that provided gender-affirming care to transgender people under the age of 19. As the federal government doesn’t generally directly regulate medical practice, the main tactic the order adopts is to withhold money. The federal government pays for vast amounts of care via Medicare and Medicaid. It also is the single largest funder of medical research and education across the nation. Stop the money, and institutions will fold.

Numerous institutions around the country—NYU Langone, UVA Health, Children’s National Hospital in Washington, D.C., Seattle Children’s Hospital, Lurie Children’s Hospital in Illinois, and Children’s Hospital of Los Angeles, among many others—terminated various forms of care to children in need, which in some cases included existing patients. After two federal courts temporarily barred the order from going into effect last week, some institutions reinstated care—but many have not.

As the executive order targeted only transgender children, these institutions can continue similar care for cisgender children. For example, some cisgender boys develop undesired breast tissue growth or retain high voices after puberty; some cisgender girls experience abnormal menstruation patterns or unwanted hair growth.

There are, of course, a range of ethical problems with what these medical providers have done. The foundation of bioethics requires providers to follow four key principles: autonomy, nonmaleficence, beneficence, and justice. Autonomy involves respecting patients’ wishes regarding their care, nonmaleficence requires doing no harm, beneficence requires charting a path that supports patient welfare, and justice requires providers to take into account equity considerations in an unjust society. Ceasing care, as these institutions have done, undermines patients’ wishes, ignores patient welfare, and targets the most vulnerable among us.

These ethical violations may be understandable if the law required them. But many of these institutions are violating the law. Some of these institutions are based in states—including Virginia, Illinois, California, and Washington—where federal appeals courts have said that the sex discrimination provisions that underlie the Affordable Care Act prohibit anti-transgender discrimination. Many of these institutions are also educational entities and are subject to laws that prohibit sex—and anti-transgender—discrimination in education. An executive order can do nothing to modify laws that Congress has passed, nor can it overturn judicial interpretation of those laws. By ending care only for transgender children, these institutions are violating federal law and are subject to lawsuits.

But there’s more. All the institutions listed above are in states that prohibit gender identity discrimination. The attorneys generals of most of these states have alerted the public that they will continue to enforce these laws, notwithstanding the executive order. And even without such protections, abruptly stopping care once a doctor-patient relationship exists violates basic principles of medical negligence.

Most troubling, however, is that these institutions are withholding care without any clear reason. The order isn’t targeted at health-care entities. Rather, it tells government agencies to take action. After the rulings last week, the order doesn’t do even that—but even if the order were to be reinstated, any agency actions (if legally done) take time. Federal agencies like the Centers of Medicare and Medicaid Services take months, if not years, to finalize regulations affecting how Medicare and Medicaid funds get spent. In other words, there are no regulations to comply with yet.

As for where families and children can safely access care, the answer to that question lies not just with this administration, but with the hospitals that have capitulated to it.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Craig Konnoth is a professor at the University of Virginia School of Law and was a fellow at NYU Langone.

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