A U.S. district judge in Oregon has announced he will vacate a declaration by Health and Human Services (HHS) Secretary Robert F. Kennedy Jr. that asserted so-called gender-affirming care for transgender youth fails to meet medical standards.
Judge Mustafa T. Kasubhai sided with a coalition of 21 states and the District of Columbia, which argued the declaration was an illegal attempt to overrule state medical regulations and an overreach of federal authority. The ruling follows a lawsuit filed immediately after the declaration was issued late last year.
In his remarks at the conclusion of oral arguments, Kasubhai rejected the Department of Justice’s defense that the declaration was merely an expression of Kennedy’s opinion without the force of law. The judge stated the declaration “materially modified” the application of care standards and characterized the government’s legal reasoning as “recursive and incoherent.”
“The declaration itself is no mere opinion,” Kasubhai said, noting that it suggested there was no standard of care that could even be applied when considering such treatments in the plaintiff states.
The declaration in question claimed that “sex-rejecting procedures for children and adolescents are neither safe nor effective” and therefore do not meet professionally recognized health standards. Such declarations are rarely used by federal secretaries outside of declaring public health emergencies.
Attorneys for the states highlighted the immediate real-world impact of the policy. Allie Boyd, an Oregon state attorney, noted that at least 17 hospitals have already been referred to the HHS Office of Inspector General for investigation based on the declaration.
Boyd testified that several providers have stopped offering so-called gender-affirming care, which includes procedures to ‘change sex’ to minors to avoid being excluded from Medicare and Medicaid programs—a move she described as “effectively a financial death sentence.”
The Department of Justice, representing HHS, had argued that the declaration did not create a binding standard or change how the government conducts exclusion proceedings. However, the states argued that the regulation of medicine is largely a state-level responsibility and that any federal rules must undergo public notice and comment periods.
The ruling comes as federal health authorities have also proposed two rules that would withhold federal funds from institutions providing their controversial procedures to young people.
While those rules have yet to be finalized, experts told STAT, which first reported the judge’s decision, that Kennedy’s declaration could have had even wider consequences by purporting to “supersede” national medical standards.
Judge Kasubhai is expected to issue an official written decision shortly and will also consider a request from the states to block any similar future policies.