• The Mandate removes a doctor’s best medical judgment and understanding of the unique needs of patients. In the case of transgender procedures, all medical discretion will be removed from doctors who would be forced to perform these procedures if a child or adult is referred by a mental health professional as having gender dysphoria.  Any doctor who refuses “transition related treatment,” even for children, would be acting in violation of “current stands of care."[1]

  • The Mandate says that whatever healthcare services physicians provide to the public must also be provided for a gender transition, regardless of the doctor’s medical judgment and despite the fact that HHS’s own medical experts found that the potential harms were high enough that Medicare and Medicaid do not even mandate coverage of these procedures. 

    • For example, HHS states that “medically necessary” medical procedures include procedures “related to gender transition”[2] including a “hysterectomy that a patient’s provider says is medically necessary to treat gender dysphoria."[3]

    • HHS stated that “A provider specializing in gynecological services that previously declined to provide a medically necessary hysterectomy for a transgender man would have to revise its policy to provide the procedure for transgender individuals in the same manner it provides the procedure for other individuals.”[4]

  • HHS did not limit the application of this rule to adults, but stated instead in the context of services for “children” that “arbitrary age, visit, or coverage limitations could constitute discrimination, including discrimination based on age.”[5]

  • Thus, a physician who prescribes puberty blocking medication to a child with a precocious puberty disorder could now be required to prescribe that medication to a child to prevent normal puberty from progressing for gender transition reasons. And a doctor who prescribes hormones to a child with hypogonadism or similar disorders could now be required to prescribe cross-hormone therapy to adolescents to facilitate a gender transition.

  • HHS approvingly cited standards of care that encourage just these types of procedures for children and adolescents , despite also acknowledging that the vast majority of children referred for this treatment will not grow up to be transgender:[6]

    • “Children as young as age two may show features that could indicate gender dysphoria.”[7]

    • “In order for adolescents and their parents to make an informed decision about pubertal delay, it is recommended that adolescents experience the onset of puberty to at least Tanner Stage 2. Some children may arrive at this stage at very young ages (e.g., 9 years of age).”[8]

    •  “[E]arly medical intervention” for youth includes “administering puberty-delaying hormones (such as gonadotropin-releasing hormone [GnRH] analogs) as early as Tanner Stage II of puberty (a development stage marked by certain physical milestones as opposed to age) and crosssex hormones as early as age 16.”[9]

    • “Chest surgery in FtM patients could be carried out earlier [than the age of adulthood], preferably after ample time of living in the desired gender role and after one year of testosterone treatment.”[10]

    • “[W]ithholding puberty suppression and subsequent feminizing or masculinizing hormone therapy is not a neutral option for adolescents.”[11]

[1] Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31375, 31435 (May 18, 2016).

[2] Id. 

[3] Id. at 31429.

[4] Id. at 31445.

[5] Id. at 31408.

[6] Id. at 31435 n. 263 (citing World Professional Association for Transgender Health (WPATH), Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People (7th ed. 2012), http://www.becketfund.org/wp-content/uploads/2016/08/WPATH-Standards-of-Care2c-V7-Full-Book-1.compressed.pdf     Standards Of Care, V7 Full Book.pdf; Institute of Medicine of the National Academies, The Health of Lesbian, Gay, Bisexual and Transgender People: Building a Foundation for Better Understanding (2011); http://www.becketfund.org/wp-content/uploads/2016/08/The-Health-of-LGBT-People_Book.pdf).

[7] WPATH, supra note 6 at 12.

[8] WPATH, supra note 6 at 18.

[9] Institute of Medicine of the National Academies, supra note 6 at 152-53.

[10] WPATH, supra note 6 at 21.

[11] WPATH, supra note 6 at 21.