The federal government is pursuing restrictions on gender-affirming care through a coordinated, multifaceted enforcement strategy.
For health care providers, understanding both the tools being deployed and the methods providers are using to respond is essential to compliance planning.
Jennifer Nelson Carney, Member of the Firm, examines the federal enforcement mechanisms and discusses how health care organizations are responding to coordinated federal challenges.
Key Takeaways
- Coordinated Enforcement Tools: The federal government is employing executive orders, civil and criminal investigations, notice-and-comment rulemaking, agency enforcement actions, and public pressure campaigns to limit gender-affirming care. Providers may face challenges from multiple federal agencies and branches at once.
- Judicial Scrutiny of Agency Motives: Courts have examined whether agency enforcement actions are grounded in legitimate regulatory authority or motivated by political objectives.
- Multi-Forum Defense Strategies: Health care providers defending against coordinated federal enforcement are engaging across multiple agencies and courts rather than pursuing a single legal strategy or forum.
- Collaborative Response Efforts: Health care organizations are coordinating with peer organizations and state attorneys general in response to federal enforcement efforts.
Transcript
[00:00:05] Jenny Nelson Carney: There are two reasons that health care providers should be concerned with gender-affirming care. First, it's a relevant topic for providers because there are an estimated 2.8 million people in the United States, ages thirteen and older, who identify as transgender. Second, the federal government has been clear that they're working to eradicate this type of care. So providers need to pay attention to the various federal and state constraints on care.
[00:00:35] Jenny Nelson Carney: The current administration has demonstrated willingness to deploy a full arsenal of policy tools simultaneously to limit gender-affirming care. The federal government has used executive orders, civil and criminal investigations, notice and comment rulemaking, agency enforcement, and public pressure campaigns in order to advance this policy objective.
[00:00:56] Jenny Nelson Carney: For the most part, courts have shown willingness to look beyond an agency's formal legal justification to assess whether agency actions are motivated by improper political objectives. Health care providers defending against this type of coordinated enforcement have simultaneously engaged across agencies and courts rather than relying on a single legal strategy or forum. Some affected parties have coordinated with other health care organizations and state attorneys general in order to maximize legal and political leverage.
About Thought Leaders in Health Law
The Thought Leaders in Health Law® video series tracks the latest trends in multiple areas of the health care and life sciences industries, featuring attorneys and advisors from Epstein Becker Green and EBG Advisors. Part of the Epstein Becker Green Insights Network.