Amid Federal Subpoenas and Funding Threats, Can Blue States Still Protect Trans Kids?
As health centers capitulate across the country, gender-affirming care for minors has come under threat. Will state-level protections hold?
We’ve seen it before: the government wants information on trans patients. Except this time, it’s not Tennessee or Texas; it’s the Trump administration. For at least one children’s hospital, the request has been total: individual patient medical records, names, and social security numbers. Meanwhile, other hospitals and providers across the country have cut access to gender-affirming care for minors, even when Democratic attorneys general warn that doing so is against the law.
Right now, the primary target seems to be gender-affirming surgeries on minors, but because of the age line chosen in Executive Order 14187, adults under 19 are being hit by the effects of this too. Plus, out of ‘caution,’ some clinics have halted all forms of gender-affirming care—including puberty blockers and hormone therapy. And despite a coalition of blue states suing to stop the order’s enforcement, that clearly hasn’t been enough. Sooner or later, the question has to be asked: can blue states actually protect trans kids?
The Walls Are Closing In
Ever since the first gender-affirming care ban—Arkansas’ HB 1570—was passed in 2021, it’s gotten harder and harder for trans minors to access the care that they need. What started as one has now become almost half the country, and earlier this month, New Hampshire became the 23rd state to pass a law completely banning gender-affirming care for minors. And after the Supreme Court’s ruling in Skrmetti, it’s become clear that those laws are here to stay for years to come.
However, as the restrictions have increased, so have the protections: 17 states have passed ‘shield laws,’ which protect doctors against legal threats for providing gender-affirming care to patients from states with bans. See the full map of state policies here:
For sources, tables, and maps for other issues, head to Transitics’ CATPALM page.
For a while, these laws accomplished their goals. They ensured trans kids from those states would continue to receive gender-affirming care and provided opportunities for those from red states to get around the bans. But after Trump’s inauguration, that status quo has slowly crumbled. Surgeries for those under 19 have been cancelled. Providers have stopped accepting new patients. Some have even stopped providing gender-affirming care to trans people younger than 19 altogether.
Colorado, Minnesota, Oregon, and Washington were the first to sue and secured a preliminary injunction back in February, but not even that has kept Kaiser Permanente—which operates in Colorado, Oregon, and Washington—from halting gender-affirming surgeries for patients under 19. More recently, 17 other states joined the fight with a separate lawsuit filed in Boston.
Whether an injunction is issued or not, the pressure from the Trump administration will continue: funds will be withheld and providers served with subpoenas. Like what’s been happening with colleges, the executive branch is attempting to wield federal funds as a weapon. In this case, they want to make providers choose between helping trans kids and keeping the ability to help others.
No Bill Shall Be Passed
But can they actually do that? Can the Trump administration withhold funds when there’s an ideological misalignment between the government and the recipient? Well, the answer is complicated. Under provisions 683 & 684 of US Code’s Title 2, the President can only withhold funds without Congressional approval for a maximum of 45 days. This withholding, known as a deferral, can’t be for strictly ideological reasons like the Trump administration has been attempting. Additionally, after the 45 days are up, should Congress not act on it, those funds cannot be deferred again.
Even if the denial on an ideological basis is ignored, the deferral can’t be extended because Congress can’t approve of it. This is because the deferrals are specific. If you remember earlier this month, the Library of Congress ‘accidentally’ deleted a part of the Constitution from its website. Well, one of the sections they temporarily deleted, Article I, Section 9, deals with exactly this issue. Specifically, Clause 3 of this section states that ‘No Bill of Attainder shall be passed’ by Congress.
In this context, a Bill of Attainder is a law that targets a specific group or person. In the 1965 Supreme Court case United States v. Brown, this was found to include instances where the individuals or groups are merely described and not explicitly named. Because extending the cuts would require Congress to pass specific and targeted legislation that punishes those who have not broken any laws (providing gender-affirming care to minors is not illegal at the federal level), that would qualify as a Bill of Attainder. It’s under these grounds that Planned Parenthood has sued the Trump administration over the provision in the ‘Big, Beautiful Bill’ banning federal funds from going to certain abortion-providing clinics.
In other words, while the presidency is not bound by the Bill of Attainder clause, the one who must approve these cuts, Congress, is. If challenged, the denial of funds can be overturned if it’s either politically motivated or longer than 45 days, and Congress would lack the power to codify it (and realistically can only do so as part of a yearly spending bill, which requires a simple majority). In practise, this means that any cuts made to hospitals over noncompliance should be temporary, but as is the norm with this administration, they won’t follow the rules unless they’re made to.
However true this may be, the sad reality is that the path of least resistance is to comply. Like with the colleges that have made agreements with Trump, hospitals believe acquiescing to the federal demands is the safest way out. Despite that, it’s not foolproof, and that’s because receiving federal funds is optional, but compliance with state law is not. So, medical providers that stop giving gender-affirming care to minors will find themselves vulnerable to a lawsuit on anti-discrimination grounds.
That said, a lawsuit has to be brought by an affected party, and if that happens, access to gender-affirming care can be enforced. At that point, the only option remaining will be for providers to sue the Trump administration over the cuts. Because a federal legal battle is all but assured if an institution doesn’t comply with the demands (they’d have to sue to survive) but only a possibility if they decide to play by Trump’s ‘rules’ (on the chance that affected patients don’t sue), compliance constitutes the path of least resistance. However, not all providers will give in. Some, like the Boston Children’s Hospital, have already chosen to continue providing gender-affirming care to trans kids in the face of these attacks.
So while blue states have demonstrated a willingness to fight back, they can’t do it alone. Those impacted have to fight too. Should a provider’s capitulation be allowed to remain the final word, especially while a preliminary injunction is in place, no amount of discrimination protections or medical privacy laws can change that. And if that fight isn’t fought, it’ll only be a matter of time before the Trump administration goes after care for trans adults too.