The Threat of the Trump Administration’s ‘Crass’ Review

Breaking down the potential consequences of the upcoming HHS report.

Yesterday, journalist Erin Reed broke the news that the Department of Health and Human Services (HHS) is planning on releasing its report on—in the words of Trump’s January 28th Executive Order Protecting Children from Chemical and Surgical Mutilation—”best practices for promoting the health of children who assert gender dysphoria” by April 28th. Since then, there’s been a lot of confusion as to what exactly this will mean for the future of gender-affirming care in the United States, and with good reason. As attacks escalate around the country, one can only wonder when they’ll attempt total bans on gender-affirming care.

First of all, it is important to note that the HHS report, like the Cass Review before it, is being created as a weapon. Its sole purpose is to legitimise “concerns” anti-trans conservatives have with gender-affirming care, and while it is being made with only minors in mind, the consequences of it could eventually reach adults as well. This won’t be in a traditional sense; after all, the HHS lacks the power to outright ban gender-affirming care nationwide. But it can make it harder (and more expensive!) to access.

As with all these recent changes in federal policy, the biggest threat is in red states. The HHS will almost certainly move to no longer require private insurance companies to cover gender-related treatments. This isn’t a ban per se, but the removal of an obligation, and those two are not the same thing. Because 24 states (see this wonderful map by the Movement Advancement Project for more information) prohibit insurance companies from not covering gender-affirming care, insurance in those states will still be required to cover transgender treatments.

This logic is put on full display in a proposed HHS rule change from last month, which aims to prohibit insurance providers from covering gender-affirming care as an Essential Health Benefit (EHB; defined as things that must be covered by even the most barebones insurance plans). While this proposed rule change merits a whole other article, only one piece of it is necessary here, an aside the rule makes to explicitly state: “We note that nothing in this proposal would prohibit health plans from voluntarily covering sex-trait modification as a non-EHB consistent with applicable State law, nor would it prohibit States from requiring the coverage of sex-trait modification, subject to the rules related to State-mandated benefits at § 155.170.” Like I said, any action will take the form of the removal of an obligation, not a ban.

On top of all this, any rule changes will almost certainly be challenged in court. Thanks to the 2024 Supreme Court ruling Loper Bright Enterprises v. Raimondo, unilateral changes in the interpretation of federal law are subject to judicial scrutiny. And in this case, the HHS will be attempting to redefine the term ‘sex’ as found in Section 1557 of the Affordable Care Act from the judicially-accepted definition of “sex, sexual orientation, and gender identity” to just “sex.” Even if the Supreme Court eventually upholds this policy, it may spend years in court (and if the lawsuit is filed in Massachusetts, for example, the court is all but guaranteed to block it because of the partisan composition of the Court of Appeals for the First Circuit), buying valuable time until the next presidential election.

Outside of insurance coverage, the HHS doesn’t have that much authority to change much, as medical malpractice laws are determined at the state level. However, this report can still be used in defense of existing bans, for which a final judgement will be delivered by the Supreme Court in June.

Until then, it’s just a waiting game. I once heard someone say that what is rejected as extreme in one cycle passes the next, and that may very well be true. In Texas, HB 3399—a total ban on gender-affirming care—now has 7 sponsors. Although this is considerably less support than SB 14—the gender-affirming care for minors ban—received when it was introduced, it marks an increasing openness to the idea, one which seems to be the end goal of anti-trans groups. But regardless of the consequences of this report, we and our allies will continue to fight for our rights for many years to come.