This editorial appears in the June 2025 issue of the American Journal of Bioethics.
As of early March 2025, 600 anti-transgender bills have been introduced nationwide, and 90 have passed. In 2024, 674 anti-trans bills were proposed and 50 passed. Of the potential bills in 2025 so far, 44 seek to restrict transgender bathroom access and over 168 seek to outlaw gender-affirming care or limit insurance coverage. The clinical care of transgender and gender-diverse adolescents encompasses a variety of potential medical interventions that are individualized after careful assessment and shared decision-making. This approach, often referred to as gender-affirming care, includes social, psychological, and familial support as well as medical interventions. Clinicians, partnering with families and patients, combine their expertise with an adolescents’ lived experience and work together to interpret the currently available data in light of the particular health circumstances of the adolescent.
Executive Orders and premature capitulation of health systems have interrupted access to clinical care for youth across the country. Research funding has been abruptly discontinued leaving unanswered valid questions about who benefits most from which medical interventions, the experiences of those who de-transition, and long-term outcomes for transgender and gender-diverse youth in the United States. Especially in light of the highly variable and often politicized interpretations of the current literature (Gorin et al. forthcoming; Simds, forthcoming), decisions about medically necessary care for transgender and gender diverse youth will always require the careful and compassionate expertise of clinicians and should remain within the clinician-patient relationship.
As a legal matter, the Executive Order itself does not have any effect on its own. Executive Orders are statements of policy, or directions to other agencies to make legal change. They cannot contravene existing federal law, or interpretations of those laws by courts, nor can they displace state law.
This is clear from the face of the Order at issue here. It directs other agencies to “take appropriate steps” and “actions” to further the Administration’s demands. Changing the conditions of Medicare and Medicaid participation, for example, requires a rulemaking process which usually takes over a year—in any case, the law requires at least 30 days for comments (Federal Register). Grants, in turn, largely depend on the terms of the grant, but existing law would generally prohibit the withdrawal of grant funding on issues unrelated to gender-affirming care (GAC), whatever an institution’s other activities. Indeed, significant hurdles exist on withdrawal of funding even for research that engages gender-affirming care.
Next, while the Order threatens criminal enforcement, those threats are largely empty. Criminal provisions pertaining to Female Genital Mutilation (FGM) are inapplicable when surgical intervention is “necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner” (Federal Register). Judicial determinations will likely look to the evidence that favors pediatric GAC as the best standard of care. Further, as the law only applies when the vagina, labia, clitoris, and other elements of the “female genitalia” are implicated, enforcement will likely be non-existent; pediatric “bottom” surgeries are exceedingly rare in adolescence for either sex. The authors know of no clinician who has provided such care.
Threats regarding “deception of consumers, fraud” and Food, Drug, and Cosmetic Act [FDCA] violations fare no better. Despite recent threats issued by the Department of Justice (DOJ), the task of policing medical malpractice-related fraud generally falls to the states. “Off-label” prosecution, as DOJ is currently threatening, would be largely unprecedented. Federal action generally has proceeded only against marketed products wholly unapproved by the Food and Drug Administration (FDA), but that does not apply to the drugs the Order targets, which, as DOJ itself admits, have been approved for care for cisgender minors.
In any case, the Order itself violates laws designed to promote equality, rendering hospitals liable for violation. The best interpretation of constitutional as well as statutory guarantees prohibiting discrimination based on sex render the Executive Order non-viable. The logic for this lies in the 2020 decision of Bostock v. Clayton County. In that case, the Supreme Court held that prohibitions on sex discrimination in employment also prohibit discrimination based on gender identity (and also sexual orientation).
The Court’s reasoning was straightforward: if antitransgender discrimination was not covered, “a transgender [woman] who was identified as a male at birth” could be fired, but “an otherwise identical [woman] who was identified as female at birth” would not be (590 U.S. 644 2020 at 663). This, the Court concluded, meant that the transgender woman would be fired “because of” sex within the meaning of federal law. Indeed, the very definition of “transgender” requires some understanding of sex: “without using the words man, woman, or sex (or some synonym) defining transgender people ‘can’t be done.’”
Other courts have extended this reasoning to contexts involving healthcare and constitutional protections. Some courts interpret the Equal Protection Clause—which, under existing Supreme Court doctrine, prohibits sex discrimination absent an “important” government purpose—to prohibit anti-transgender discrimination as well (Kadel v. Folwell; Hecox v. Little). Similarly, Section 1557 of the Affordable Care Act prohibits discrimination on any “ground prohibited under … title IX of the Education Amendments of 1972”, which, in turn, bans discrimination “on the basis of sex” in federally funded educational institutions, which include university medical schools, and even residency programs at private hospitals. Federal courts of appeal that govern California, Oregon, Washington, Virginia, Illinois, Wisconsin, among other states, hold that this prohibits anti-transgender discrimination in healthcare, which the Executive Order demands.
State law in numerous jurisdictions, including California, Virginia, Illinois, and New York, where medical institutions have ceased providing care—also prohibit discrimination based on gender identity. The Executive Order does nothing and cannot displace state law on its own authority. Thus, as the New York Attorney General has explained, “withholding the availability of services from transgender individuals based on their gender identity or their diagnosis of gender dysphoria, while offering such services to cisgender individuals, is discrimination under New York law”—or similar laws in other states. In various states, withdrawal of care without sufficient notice and reasonable time to find alternative care is also prohibited by medical malpractice and other forms of tort law. Patients can therefore file suit under these doctrines, though only if they experience damage from care withdrawal. Regardless of restraining orders and challenges to the Executive Order playing out in the court system, healthcare institutions fearful of the threats to funding continue to pause or limit gender-affirming care for adolescents.
Opponents of medical or surgical gender-affirming care often trot out the canard that youth who have undertaken the process have decisional regret. Ironically, social and family-related stigma is the primary cause of decisional regret—which is extremely rare—in those who have undergone such treatment. Decisional regret after gonadectomy is 0.6% for transgender women and 0.3% for transgender men. These data beg the question, why the social turbulence and moral outrage? For some the answer may be a simple lack of knowledge (true ignorance) about gender dysphoria. For others, wholesale rejection of treatment could be explained by the social intuitionist model of morality in which moral judgment arises from “quick, automatic, affective evaluations they make of people and events,” i.e., from gut feelings. And then there are the mangled pieties of those who use religious belief to oppress others.
Regardless of the cause, the issue is politically expedient. After canceling most NIH-funded research on transgender health, in January 2025 the Trump administration, in April, directed the NIH to study negative consequences of transitioning, particularly decisional regret and de-transitioning. In keeping with the administration’s knuckle-dragging and sham-populist approach to the scientific enterprise (at least there are no queries about drinking bleach this go round), then-acting NIH Director Mark Memoli directed the NIH to study the impact of “social transition and/or chemical and surgical mutilation” among children who transition.
On May 1, 2025, the White House released a 400-page Health and Human Services “comprehensive review,” “Treatment for Pediatric Gender Dysphoria: Review of Evidence and Best Practices”. At the press conference announcing the report’s release, Stephen Miller, White House Deputy Chief of Staff, excoriated gender-affirming care as “barbaric,” haranguing: “They violate all sound medical ethics. They are completely unwarranted. They harm children for life irreversibly. It is child torture. It is child abuse. It is medical malpractice.” And in a stultifyingly hypocritical swivet, NIH Director Jay Bhattacharya, exhorted: “Our duty is to protect our nation’s children—not expose them to unproven and irreversible medical interventions…We must follow the gold standard of science, not activist agendas.” Despite these sweeping conclusions, the HHS report notably assesses the overall state of evidence for gender-affirming care as inadequate, even to support their own position, “Evidence for harms associated with pediatric medical transition in systematic reviews is also sparse” and “the evidence for psychotherapy for GD is of very low certainty” . Other authors have reviewed the same literature and instead concluded, “despite the low certainty of the available evidence, practitioners and policymakers can use evidence-informed approaches that account for uncertainty in their decisions about health care for TGE youth”.
Ultimately, the gold standard of quality health care is the clinician-patient relationship. It is built on trust, respect for patient autonomy, and the ability of patients to make informed decisions about their care. The Executive Order and subsequent directives interfere with this relationship by undermining the ability of medical professionals to provide care based on clinical judgment, established medical standards, and the specific needs of transgender minors. By restricting access to gender-affirming care—such as puberty blockers and hormone therapy—the Executive Order, legislative bans, and misleading information disregard the expertise of healthcare providers who understand the medical necessity of these treatments for many transgender persons and the expertise and lived experience of youth and their parents. Families with transgender adolescents take seriously their right and responsibility to support their child’s well-being and health. Decisions about medically necessary care should remain within the clinician-patient relationship.