An Oregon U.S. district judge plans to overturn a declaration made last year by health secretary Robert F. Kennedy Jr. This declaration claimed that gender-affirming care for young transgender individuals does not align with medical standards.
Following the declaration, a group of states, along with D.C., filed a lawsuit against Kennedy, arguing that he exceeded his authority. They pointed out that medical regulation is predominantly a state responsibility, and any federal regulations must undergo public notice and comment periods.
The Department of Justice, on behalf of the Department of Health and Human Services, countered these accusations, stating that Kennedy’s declaration was merely his opinion without legal impact.
During oral arguments on Thursday, Judge Mustafa T. Kasubhai expressed agreement with the plaintiffs. He noted that Kennedy’s declaration had “materially modified” the understanding of standards of care in gender-affirming treatment, suggesting no applicable standard exists in the states challenging the declaration. A formal written decision is expected soon. Kasubhai will also assess the states’ request to halt the declaration’s implementation or any similar policy.
In December, federal health officials proposed two regulations that would restrict federal funding related to gender-affirming care for young transgender people. Should these rules be enacted, they could significantly affect healthcare facilities financially and are likely to face legal opposition. Experts caution that the accompanying declaration, which aims to override state and national care standards, might have even broader implications.
The declaration claims that “sex-rejecting procedures for children and adolescents are neither safe nor effective as a treatment modality for gender dysphoria,” and thus “do not meet professionally recognized standards of health care.”
According to court documents, several states currently include gender-affirming care in their Medicaid programs, funded by federal dollars. The declaration and proposed CMS rules would prevent this and conflict with laws in some Democratic states mandating the inclusion of such care in Medicaid programs.
Allie Boyd, an attorney for the state of Oregon representing the plaintiffs, stated that at least 17 hospitals have been referred to the HHS’s Office of Inspector General for investigation following the declaration. This referral has led many hospitals to cease providing gender-affirming care to minors. An investigation could result in a provider being barred from Medicare and Medicaid, which Boyd described as “effectively a financial death sentence.”
Federal secretaries rarely issue declarations. Within the Department of Health and Human Services, such declarations have primarily been used to address public health emergencies.
Kathryn Alkire, an attorney for the Department of Justice, maintained that Kennedy’s declaration was merely his personal view, lacking any authoritative power. “The declaration does not modify the process by which OIG carries out exclusion proceedings,” she argued. “It does not establish a binding standard.”
Judge Kasubhai, however, remained unconvinced.
“The declaration itself is not simply an opinion,” he remarked. “When the government asserts that Secretary Kennedy is not invoking any authority, so therefore there is nothing for me to consider, it’s a recursive and incoherent logic.”
In seeking to minimize the declaration’s legal implications, the government argued that the declaration is just one element the HHS Inspector General might evaluate when deciding whether to exclude a provider from Medicare or Medicaid.
“There’s a theme of breaking it to see what others will do,” Judge Kasubhai commented on the administrative law cases he has overseen. “And that’s not a system or method committed to the rule of law.”
