President Trump’s Executive Order on Gender Affirming Care: Responses by Providers, States, and Litigation

On January 28, 2025, President Trump issued an Executive Order titled, “Protecting Children From Chemical And Surgical Mutilation.” Among other actions, the Order directs agencies and programs to work towards significantly limiting youth access to gender affirming care nationwide. It also includes misinformation about gender affirming care and young people who are transgender.

While the order does not immediately change policies or regulations that guide access to gender affirming care, it has already created significant confusion and some disruption of services, and there is now a legal challenge, as well as responses by several states. This Policy Watch reviews the key provisions of the Executive Order that aim to restrict youth access to gender affirming care and examines state and legal responses.

The Executive Order

Key provisions related to care restrictions include:

• Directs agency/department heads to take steps to prohibits those receiving certain federal research grants, including hospitals and medical schools, from proving gender affirming care to children: “The head of each executive department or agency (agency) that provides research or education grants to medical institutions…shall…take appropriate steps to ensure that institutions receiving Federal research or education grants end” end gender affirming care for children.
• Directs the Secretary of the Department of Health and Human Services (HHS) to take action to end gender affirming care for children “including [through] regulatory and sub-regulatory actions, which may involve the following laws, programs, issues, or documents:
  • Medicare or Medicaid conditions of participation or conditions for coverage;
  • clinical-abuse or inappropriate-use assessments relevant to State Medicaid programs;
  • mandatory drug use reviews
  • section 1557 of the Patient Protection and Affordable Care Act
  • quality, safety, and oversight memoranda
  • essential health benefits requirements; and
  • the Eleventh Revision of the International Classification of Diseases and other federally funded manuals, including the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition.”

Taken together, and if implemented broadly, restrictions across these programs and policies could significantly limit access to gender affirming care for most young people nationwide, including for those with both private and public insurance, and even for some who are able to pay out-of-pocket. It would also likely lead to a reinterpretation of the major sex nondiscrimination protections in the Affordable Care Act (Section 1557) to remove explicit named protections on the basis of sexual orientation and gender identity in health programs receiving federal funding.

• Directs the Secretary of the Department of Defense “commence a rulemaking or sub-regulatory action” restrict access to gender affirming care for children in the TRICARE program. This restriction goes beyond those already enacted by Congress.
• Directs the Director of the Office of Personnel Management to limit access to care in coverage for federal employees’ families by requiring the inclusion of “provisions in the Federal Employee Health Benefits (FEHB) and Postal Service Health Benefits (PSHB) programs call letter for the 2026 Plan Year” that would require eligible carriers to exclude “coverage for pediatric transgender surgeries or hormone treatments…”

Additionally, the Executive Order promotes misinformation, including that large shares of youth are seeking gender affirming medical care, which is not the case, that regret rates among those who do seek care are high, when regret rates are very low, and erroneously conflating “female genital mutilation” and gender-affirming care.

Notably, the Executive Order defines children to include 18 year olds, which goes beyond how most states define minors.

State Responses

As of February 6, 2025, Attorneys General in seventeen (17) states have publicly responded to the Executive Order. Fifteen (15) have stated that they oppose the Executive Order in a coalition led by the Massachusetts Attorney General. The coalition press release states that the State Attorneys General “reaffirm their commitment to protecting access to gender-affirming care” and that the Executive Order “is wrong on the science and the law.” Additionally, the Oregon Attorney General issued a statement in support of youth access to gender affirming care and stated that they “are vigorously exploring all legal options to challenge any policies or actions that hinder access to the care Oregonians need and their rights to make their own medical decisions,”  but stopped short of directly opposing the Executive Order.

In addition to being part of the coalition letter, some Attorneys General have directed providers to continue proving gender affirming care, noting that failing to do so could be in violation of state nondiscrimination protections.

In contrast, the Attorney General in at least one state, Virginia, instructed at least two university Hospital systems to stop providing care in order to comply with the order and minimize “significant legal risk and substantial financial exposure.”

None of the 26 states with laws prohibiting or limiting youth access to gender affirming care have yet to officially respond to the Executive Order.

Legal Response

On February 4, 2025 the ACLU, Lambda Legal, and others, filed a lawsuit in federal court challenging the Executive Order. The complaint states that the Executive Order aimed at restricting gender affirming care (and another related to “gender ideology”) “were issued for the openly discriminatory purpose of preventing transgender people from expressing a gender identity different from their sex designated at birth” and are unlawful and unconstitutional. Specific counts named in the filing are that the orders:

• “unconstitutionally usurp congressional authority by withholding lawfully appropriated federal funds from medical institutions, providers, and researchers…”;
• conflict with protections imbedded in Section 1557 of the ACA (sex nondiscrimination protections in health programs in receipt of federal funds);
• violate federal disability protections;
• violate equal and due process (infringe upon parents’ fundamental rights) protections under the Fifth Amendment; and
• violate First Amendment freedom of speech protections.

In addition to asking the court to find the orders unconstitutional and unlawful, the plaintiffs seek injunctive relief, enjoining their implementation and enforcement.

On February 7, 2025 a second lawsuit was filed in federal court by three states (Washington, Minnesota and Oregon) and three physicians from the state of Washington, challenging the gender affirming care Executive Order, calling it “blatantly unconstitutional.”  Specific counts named in the filing are that the Order:

• violates protections under the Fifth Amendment
• “is an unconstitutional usurpation of the spending power of Congress, an unconstitutional effort to amend Congressional appropriations…, and a violation of the separation of powers”
• is a violation of the Tenth Amendment in its seizure of “the States’ historic police powers to regulate the practice of medicine

As with the plaintiffs in the first suit, the plaintiffs here ask the court to find certain sections of the Executive Order unconstitutional and seek injunctive relief, enjoining their implementation and enforcement. They also ask the court for an expedited hearing to determine whether the court should enter a preliminary injunction or the Temporary Restraining Order (in a separate case that stopped a pause on federal funding) should be extended.