Some hospitals are complying with Trump’s order on transgender teens : Shots

A homemade sign at a rally in Union Square in New York City on Saturday. Various hospitals across the country curbed gender-affirming care for people under 19 after President Trump’s executive order.

Stephanie Keith/Bloomberg via Getty Images

hide caption

toggle caption

Stephanie Keith/Bloomberg via Getty Images

Kristen Chapman had already moved her family from Tennessee to Virginia to try to find a state that would be more welcoming to her transgender daughter, Willow.

After months waiting for an appointment at the gender-affirming care clinic at VCU Health in Richmond, Willow had one on the calendar on Jan. 29. President Trump’s executive order limiting transgender health care for youth came out in the afternoon of Jan. 28.

“Just a few hours before our appointment, VCU told us they would not be able to provide Willow with care,” Chapman says.

Chapman is a plaintiff in a lawsuit against the Trump administration brought by the ACLU and Lambda Legal. The suit seeks to block the order from taking effect, but even before a formal policy was enacted, the order began to be enforced. The White House issued a press release pointing to hospitals that had immediately canceled appointments: NYU Langone in New York City, UCHealth in Denver, Children’s National in Washington, D.C., and others.

“I thought Virginia would be a safe place for me and my daughter. Instead I am heartbroken, tired and scared,” Chapman says on a press call announcing the lawsuit last week.

Conflicting directives

ACLU senior counsel Joshua Block, who was also on the call, says Congress has passed laws prohibiting hospitals and health centers that receive federal funds from discriminating against patients on the basis of sex, and courts have found that those protections extend to transgender patients. “President Trump’s executive orders attempt to direct grant recipients to do precisely what Congress has prohibited them from doing,” Block says. “Congress said don’t discriminate, and President Trump is saying you have to discriminate.”

The day after the lawsuit was filed, 15 attorneys general including from California, Maine, and Wisconsin issued a statement warning hospitals they must not cancel appointments or they would be violating state anti-discrimination laws.

So what is a hospital to do?

The American Hospital Association told Newsportu they are not providing guidance to hospitals right now about how to navigate this. The Children’s Hospital Association told Newsportu they are reviewing the order.

The care at issue includes puberty blockers and cross-sex hormone therapy — medications that help transgender teens develop characteristics that align with their gender identity. Use of these treatments is supported by major American medical groups including the American Academy of Pediatrics.

Major funding at risk

The stakes are high for hospitals because Trump’s executive order directs the government to take actions to end transgender care for people under age 19 through “regulatory and sub-regulatory actions.” At the top of the list of laws and programs that might be involved in such actions is “Medicare or Medicaid conditions of participation or conditions for coverage.”

The order is not tremendously clear, but Medicare and Medicaid are huge funding streams in nearly every hospital in the country, which could explain why the executive order appears to have had a chilling effect on care even while it’s challenged in court. Seattle, New York City, Los Angeles and Washington, D.C. all had protests outside children’s hospitals that decided to cancel appointments.

Some hospital systems continued to provide care, including Mass General Brigham in Boston and Oregon Health & Science University in Portland, Or. (At least one hospital that initially canceled an appointment, Children’s Wisconsin, ended up rescheduling that patient amid the legal uncertainty.)

Hailed by conservative think tank

For those who support Trump on restricting health care for transgender youth, it’s a victory.

“I think this is fantastic what President Trump has done to protect children in this country,” says Terry Schilling, president of the American Principles Project, which has urged states and the federal government to limit access to what he calls “sex trait modification procedures.”

Schilling says that “this is a real problem — gender dysphoria exists,” but that medical treatments like hormones and puberty blockers shouldn’t be given to minors.

People who support state bans on gender-affirming care for young people gathered outside the U.S. Supreme Court on Dec. 4, when a case brought against Tennessee’s ban was heard.

Al Drago/Bloomberg via Getty Images

hide caption

toggle caption

Al Drago/Bloomberg via Getty Images

“The compromise that the American people have made and [President] Donald Trump has made is that we will allow adults to go through these procedures, but when it comes to children, we’re not going to allow it,” he says.

Still, Schilling acknowledges that the executive order is not sufficient to end gender-affirming care for youth on its own. “I think it’s got a little bit more to play out,” he says.

The Supreme Court is set to rule in the coming months on whether a state gender-affirming care ban for youth constitutes sex discrimination, he notes, and he would like to see Congress act. “We have to get votes in Congress,” he says. “We have to hold senators and members of Congress accountable for these procedures.”

About half of states have gender-affirming care bans for minors on the books; not all of them are in force at the moment.

Legal issues ahead?

With the executive order, the president is trying to attach new conditions to federal grants to hospitals and clinics, explains Katie Eyer, a professor of law at Rutgers University in New Jersey.

“The president doesn’t have any unilateral authority to do this,” she says. That’s a key distinction between this effort and the Hyde Amendment, which limits federal spending on abortion.

Jon Schweppe, policy director at Schilling’s organization, told Newsportu in November that a Hyde Amendment for gender-affirming care was a goal he hoped the Trump administration would pursue. This executive order is considerably more sweeping than the amendment because it could implicate all federal funding going to a hospital or clinic, not just funding for this particular kind of care.

There’s another difference, Eyer points out. The Hyde Amendment “was established by Congress, went through constitutional challenges and was affirmed,” she says. None of that process has happened in this case.

In ordinary times, she says, hospitals could simply take an order like this to court and trust they would win. But now, there’s a lot of uncertainty about how the courts and Congress are going to respond to this order and other executive orders from the White House, and federal funding could theoretically be cut off to hospitals in the interim. Some recipients of federal health grants have reported intermittent problems receiving reimbursement. The office involved has said it is due to “technical issues,” but it has grantees on edge.

“So that really does put regulated entities [like hospitals] in a predicament,” Eyer says.

The ACLU lawsuit is asking the court for a temporary restraining order while the legal process plays out. In the meantime, hospitals and clinics are making their best guesses on how to proceed, and families and trans young people are waiting.