Trump’s Executive Order Seeks to Ban Gender Affirming Care
On January 28, 2025, President Trump signed Executive Order 14187 under the title “Protecting Children From Chemical and Surgical Mutilation.” Under this EO, the federal government “will not fund, sponsor, promote, assist, or support the so-called ‘transition’ of a child from one sex to another, and it will rigorously enforce all laws that prohibit or limit these destructive and life-altering procedures.” If fully implemented, EO 14187 would greatly limit the ability of health care providers to furnish gender affirming care to anyone under the age of 19 years old.
The EO directs the U.S. Attorney General to review federal laws on female genital mutilation to “prioritize enforcement of protections” and “to convene States’ Attorneys General and other law enforcement officers to coordinate the enforcement of laws against female genital mutilation.” This would include bringing federal criminal prosecutions under 18 U.S.C. § 116 against health care providers for prescribing certain hormone and other drug treatments to align their minor patients’ physical characteristics with their perceived sexual identities.
The EO states that the definition of female genital mutilation under Section 116 includes “the use of puberty blockers, including GnRH agonists and other interventions, to delay the onset or progression of normally timed puberty in an individual who does not identify as his or her sex; the use of sex hormones, such as androgen blockers, estrogen, progesterone, or testosterone, to align an individual’s physical appearance with an identity that differs from his or her sex; and surgical procedures that attempt to transform an individual’s physical appearance to align with an identity that differs from his or her sex or that attempt to alter or remove an individual’s sexual organs to minimize or destroy their natural biological functions.”
The EO also directs:
- agencies to rescind or amend policies that rely on guidance from the World Professional Association for Transgender Health (WPATH);
- executive departments and agencies to “immediately take appropriate steps to ensure that institutions receiving Federal research or education grants end the chemical and surgical mutilation of children;”
- the Secretary of HHS to act to “end the chemical and surgical mutilation of children” through regulatory actions by targeting (i) Medicare or Medicaid conditions of participation or conditions for coverage; (ii) clinical-abuse or inappropriate-use assessments relevant to State Medicaid programs” and other actions;
- the Director of the OPM to exclude coverage for pediatric transgender surgeries or hormone treatments by requiring such “provisions in the Federal Employee Health Benefits (FEHB) and Postal Service Health Benefits (PSHB) programs call letter for the 2026 Plan Year”; and
- the Department of Defense to “commence a rulemaking or sub-regulatory action” to restrict access to gender affirming care for children in the TRICARE program.
In addition to potential criminal penalties, the EO further directs the Attorney General “in consultation with the Congress” “to draft, propose, and promote legislation to enact a private right of action for children and the parents” of children who have received gender affirming care “which should include a lengthy statute of limitations.” If such legislation were passed, it is possible that a health care provider who renders gender affirming care to an 18-year-old legal adult who sought out and consented to the care could be sued by the parents. Healthcare providers furnishing gender-affirming care, may thus risk civil lawsuits and criminal prosecution, with limited or no professional liability coverage, because insurers typically exclude coverage for illegal or criminal acts.
Notably, while health care providers who provide gender affirming care to minors may face serious federal liability as result of the implementation of EO 14187, they also may incur liability under New York State laws by refusing to provide such care. New York State Attorney General Letitia James has warned providers who practice in New York that they must continue offering gender affirming care and comply with state discrimination laws. Health care providers who have been providing gender affirming care to minors may face liability for stopping this ongoing care under New York patient abandonment regulations, and for refusing to provide the care in violation of the New York state constitution’s prohibition against discrimination based on sexual identity.
EO 14187 directs all identified agency heads to “submit a single, combined report to the Assistant to the President for Domestic Policy, detailing progress in implementing this order and a timeline for future action” within 60 Days of its issuance. While additional agency guidance has yet to be issued, the EO is currently being challenged in federal court on the grounds that it is openly discriminatory, unlawful, and unconstitutional. On February 13, a federal judge issued a temporary restraining order preventing the federal government from withholding or conditioning funding on the basis of providing this care. We believe that the myriad legal issues raised by the Order will eventually be decided by the U.S. Supreme Court.
Bleakley Platt & Schmidt’s Health Law Practice Group will continue to monitor all legal developments. If you have questions regarding the EO, please contact BPS’s Health Law attorneys, Robert Braumuller (914-287-6185 or rbraumuller@bpslaw.com) and Zaina Khoury (914-287-6187 or zkhoury@bpslaw.com).