Kyle Faget on HHS Gender-Affirming Care Declaration – Impact is 'Enormous'

Foley & Lardner LLP partner Kyle Faget commented on the U.S. Department of Health and Human Services declaration on gender-affirming care in STAT News and Law360.

In STAT News, Faget described the declaration’s impact as “enormous,” highlighting that it exposes providers to significant risks for offering gender-affirming care.

“It essentially says to the medical community…you can’t, without significant risk, provide gender-affirming care even if you believe that is an appropriate standard of care,” she explained. Faget added that the declaration would effectively bar those health care providers from practicing within entities that accept federal funding, even if they provide gender-affirming services in a private practice.

“We’ve never seen a declaration issued like this before. Declarations tend to be issued in public health emergencies. That’s not what they chose to do here,” she added.

Commenting on litigation challenging the declaration, in the Law360 article, “Oregon Leads Blue States’ Attack On Gender-Affirming Care Block,” Faget said that it makes sense for states to challenge the declaration specifically, given it is already in effect and may have an “enormous impact.”

“This approach by the administration is novel, which requires thoughtful lawyering to challenge this novel approach,” she continued, noting the states allege no federal statute permits the U.S. Secretary of Health and Human Services to declare a national standard of care and the strategic decision to file the suit in Oregon, which has legal protections in place for gender-affirming treatment.

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