How will legal challenges fare against CMS rule on gender-affirming care?

The Trump administration's effort to end transgender health care for young people has repeatedly been blocked in court, with judges ruling against Justice Department subpoenas, a health secretary declaration, and parts of an executive order halting federal support for this care. Despite those losses, the administration has pressured dozens of hospitals to close or pause gender-affirming care programs.

The Centers for Medicare and Medicaid Services finalized a rule this week barring the use of federal Medicaid and CHIP dollars for pediatric gender-affirming medications and surgery. It takes effect Oct. 13, banning Medicaid coverage for anyone under 18 and CHIP coverage for anyone under 19. Mental health care remains covered with federal funds, and states may still use their own Medicaid dollars for any gender-affirming care. Separately, the Department of Health and Human Services released a report on diagnostic coding practices among gender-affirming care clinicians and referred hundreds of health care groups to the Justice Department for investigation.

Legal experts are split on the rule's durability. Elana Redfield of the Williams Institute called it part of an "ideological campaign" but described the final rule as "a gray area." Travis Jackson of McDermott Will & Schulte said the agency responded to nearly 35,000 public comments and followed the typical regulatory process to "position this rule to withstand the inevitable legal challenges." Carmel Shachar of Harvard Law School said the rule "feels less out there than some of the other proposals."

Lawsuits are expected; the Massachusetts attorney general's office confirmed it plans to challenge the rule. Legal experts expect the coverage restriction to hold in the short term but say it is not impregnable. CMS asserts it has independent legal authority to exclude certain services from federal coverage, as it already does for over-the-counter medications and abortion services.