On December 18th, 2025, the U.S. Department of Health and Human Services (HHS) launched a multi-pronged, administrative attack on gender affirming care (GAC) for pediatric patients. The Department’s goal is straightforward: to use its vast rulemaking authorities to ban the practice nationwide. The Supreme Court holding in U.S. v. Skrmetti and the recent tenor of oral arguments in other trans rights cases likely mean that core 14th Amendment Equal Protection and Substantive Due Process defenses are unavailable to trans youth and their parents who might seek to halt the agency’s actions. But there are compelling arguments, sounding in administrative law, that hospitals, physicians, patients, and progressive states could deploy to halt these efforts.

Of the regulatory actions HHS has announced, its proposed rule that “hospitals must not perform [gender affirming care] on any child” as a condition of participation (CoP) in the Medicare and Medicaid programs is one of the most threatening. U.S. hospitals depend on the patient care revenues they realize from these programs for financial survival. If the rule is finalized, Secretary Kennedy could then terminate the agreements under which non-compliant hospitals receive payments from Medicare and Medicaid, a move that would quickly lead to the hospitals’ insolvency. Consequently, requiring that hospitals ban GAC as a condition for continued participation in the programs would, as a practical matter, compel almost all US hospitals, where 80% of such care is provided, to halt these treatments. In fact, in response to the proposed rule, some U.S. hospitals have already pre-emptively curtailed the practice, leaving patients and families to scramble for services.

HHS asserts the statutory authority to promulgate new CoPs principally in Sections 1861(e) and 1905(a) of the Social Security Act (SSA). Section 1861(e) lists a series of administrative and process-oriented obligations that hospitals must meet to qualify for Medicare payments, such as “provid[ing] 24-hour nursing service,” “maintain[ing] clinical records on all patients,” or “having bylaws in effect.” It includes, as its final item, “such other requirements as the [HHS] Secretary finds necessary in the interest of…health and safety of individuals who are furnished services” by the hospital. This is the statutory delegation of rulemaking authority that permits HHS to issue additional CoPs. Section 1905(a) authorizes Medicaid payments to hospitals, and the agency incorporates its Medicare CoPs into Medicaid by regulation. At first blush, a delegation permitting additional conditions the Secretary believes will protect beneficiaries’ “health and safety” might appear broad enough to permit HHS to propose all manner of healthcare regulations, including instructions as to which medical treatments hospitals can and cannot offer. But this is wrong for at least four reasons.

First, Section 1801 of the SSA forbids “any Federal officer or employee” from “exercis[ing] any supervision or control over the practice of medicine or the manner in which medical services are provided.” Appellate courts have construed 1801 to limit “federal involvement in medical treatment decisions” such that HHS cannot either “direct or prohibit any kind of treatment or diagnosis,” or propose “regulations that may have the effect of directly influencing a doctor’s decision on what type of medical treatment will be provided.” The federal courts’ interpretation of the plain text of this critical section thus forecloses any reading of Section 1861’s authorization to regulate health and safety that would permit bans on whole categories of treatment. But that is precisely what the Trump administration would aim to do with this proposed CoP. If permitted by the courts and taken to its logical end, such a move would empower the executive branch to condition hospital participation in Medicare or Medicaid on the hospital prohibiting (or mandating access to) all manner of contested treatments: abortion, assisted suicide, conversion therapy, medical marijuana, in-vitro fertilization, or psychedelic pharmacologics. In the federal register, HHS tries to head off this argument by contending that “[GAC] is not healthcare” and “hence is not subsumed under the term “practice of medicine.” But this circular logic would render Section 1801 a nullity. If a court were to accept this argument, HHS could then prohibit any treatment or diagnosis by simply re-defining it as outside the practice of medicine and thus outside the provision’s reach. This kind of end-run around 1801’s plain text meaning and purpose cannot stand.     

Second, whenever Congress writes a law that lays out a list of specific authorities followed by a final catch-all provision, such as in Section 1861(e), the Supreme Court has endorsed a rule of statutory construction requiring that “where…a more general term follows more specific terms in a list, the general term is usually understood to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” The enumerated authorities in Section 1861(e) all focus on who can deliver care and how that care must be delivered. They never limit what care may be delivered to patients. The regulations the agency has previously issued under this provision respect that distinction. For example, one condition of participation regulates how long after admission or surgery a patient must be examined and by whom (42 C.F.R. § 482.22(c)(5)). Yet another identifies which tasks may be delegated by a physician to a physician assistant or nurse practitioner (See id. § 483.30(e)). And still another condition identifies programs that hospitals must implement to govern the “surveillance, prevention, and control of . . . infectious diseases” (See id. § 482.42). Surveying these examples, a closely divided Supreme Court in Biden v. Missouri held that the statute authorized more than just regulations governing “the technical administration of Medicare,” and so the Secretary could promulgate a condition mandating COVID vaccination for healthcare workers employed in accredited facilities. Secretary Kennedy, however, proposes to stretch the statute past its breaking point by banning a specific type of care for patients. Dictating standards of care for U.S. patients goes well beyond anything the agency has previously done, much less that the Court has endorsed.

Third, the proposed rule is inconsistent with Section 1905(r) of the SSA (e.g. the Early and Periodic Screening, Diagnostic, and Treatment Benefit; EPSDT). This provision of Medicaid requires that states cover, for beneficiaries under the age of 21, any service that fits within one of the “benefit categories” and is medically necessary to “correct or ameliorate” a physical or mental health condition discovered through routine screening, regardless of whether the “service is covered under the state” Medicaid plan for adults. GAC fits within multiple benefit categories. Most major U.S. healthcare organizations have endorsed evidence-based, individualized GAC for minors as a medically necessary standard of care to “ameliorate” gender dysphoria (a mental health condition); none advocate for outright prohibition.  And at least one federal district court has found that the logic of this provision requires states to cover hormonal and puberty blocking treatment for trans minors on Medicaid. Because Medicare’s conditions of participation govern all care hospitals provide, whether the impacted patient is enrolled in Medicare or not, HHS’s CoP would conflict with Section 1905(r)’s intent to provide GAC to minors enrolled on Medicaid. And in the law’s hierarchy, this statutory mandate should trump the proposed regulation. 

Finally, an HHS CoP banning GAC for minors would violate the Administrative Procedure Act’s prohibition against arbitrary and capricious agency actions. The Supreme Court has explained that “an agency [regulation] would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” The proposed CoP would fail such an analysis for at least two reasons: 1) it runs counter to accumulated evidence in favor of puberty blockers and hormone therapy as a treatment for minors with gender dysphoria; the agency thus would have to explain why, despite evidence of efficacy that has led multiple U.S. medical professional societies to endorse GAC for appropriately selected minors, an outright ban is warranted, and 2) the agency must show that there is an actual problem that its blanket ban would solve, and that it considered other significant alternatives like narrower age restrictions or requirements for more extensive medical evaluations. HHS has not met these burdens.

Outside of the above statutory barriers, even after Skrmetti there remain constitutional constraints on the Trump administration’s ability to leverage CoP regulations to effectuate a nationwide ban. Because the Medicare and Medicaid amendments to the SSA were passed pursuant to Congress’ Article I Spending Clause authority, the Courts treat hospitals and states that participate in these programs as having entered into a contract with HHS. As part of such a contract, Congress must give states and private parties (e.g. the hospitals): 1) clear and unambiguous notice as to their obligations under the contract and 2) not unduly coerce them into acceptance of such obligations.

Here, not only did Congress fail to make clear its intention to allow HHS, through rulemaking, to ban hospitals from providing whole categories of treatment, in Section 1801 (see above), it explicitly disavowed such proscriptive powers. Moreover, because Medicaid is a program whose entire purpose is to “[enable] states…to furnish medical assistance,” not preclude it, legislative amendments, if they touch on treatments at all (e.g. EPSDT), have only expanded the categories of assistance available to beneficiaries. Given this well-known programmatic history and intent, any attempt by the federal government to use its Spending Clause authority to ban treatments otherwise permitted by states through Medicaid would have required Congress to have made such authority “clear and manifest” within the text of the enabling statute. It has clearly failed to do this. In short, there are no mouseholes in the SSA into which this regulatory elephant might even attempt to hide. 

States like New York and Rhode Island also have statutes in place that prohibit discrimination based on gender identity in places of public accommodation (e.g. hospitals). The proposed CoP would financially coerce hospitals into violating these state statutes. And nowhere in the SSA did Congress give states notice of its intent to confer upon HHS the right to pre-empt local non-discrimination ordinances. Justice Alito, in his dissent in Moyle v United States, uses analogous legal logic to decry the government’s attempt to use its Spending Clause authority to “limit Idaho’s choices about what conduct to criminalize” (there abortion) without a clear statement announcing such authority within the controlling federal statute. Here HHS would be claiming a similar, unannounced power to limit certain states’ choices about what non-discrimination protections to add.

Ultimately, these statutory and Spending Clause-based arguments against the proposed rule should convince both liberal and conservative jurists that HHS’s attempt to impose by regulation a de facto nationwide ban on gender affirming care for minors is illegal. Invariably these rules will be challenged in court. If upheld, the legal logic of HHS’s actions would permit the federal government to ban all manner of controversial healthcare for both children and adults, fundamentally upending and reordering the federal balance of power where traditionally these authorities have been “reserved to the States.” Hospitals should resist, through litigation, HHS’s efforts to encroach on their professional prerogatives.

Sean M. McBride, MD, MPH, MSL is a Vice Chair in the Department of Radiation Oncology at Memorial Sloan Kettering with a research interest in health and administrative law. Dr. McBride is the brother of Rep. Sarah McBride (D-DE).

Alexander Chen is the Founding Director of the Harvard Law School LGBTQ+ Advocacy Clinic and an incoming Assistant Professor of Law at Willamette University College of Law.