Just one day after the House passed Marjorie Taylor Greene’s extreme nationwide ban on gender-affirming care for minors—which is expected to fail in the Senate—Health and Human Services Secretary Robert F. Kennedy Jr. has announced three new rules targeting the trans community, one of which constitutes a near-total national ban on treatment for trans youth. The rules, set to take effect after a 60-day comment period, would formalise Trump’s Executive Order 14187 that weaponises federal funding against care providers.

This attack is unprecedented. Under proposed regulation 0938-AV87, the HHS would establish a new Condition of Participation (CoP)—rules of basic safety that hospitals must follow in order to accept Medicaid and Medicare, itself essentially a condition of tax-exempt status—prohibiting hospitals (defined here) from “performing sex-rejecting procedures on any child.” Because Medicaid and Medicare form a large chunk of hospital revenue, the message being sent to hospitals is clear: stop providing lifesaving care to trans kids or close your doors.

Like state-level bans on gender-affirming care, the rule contains exceptions for those “with a medically verifiable disorder of sexual development” and “for purposes other than attempting to align an individual’s physical appearance or body with an asserted identity that differs from the individual’s sex.” However, it also introduces a new category: detransition care. As part of this change, hospitals would still be allowed to “treat complications, including any infection, injury, disease, or disorder that has been caused by or exacerbated by the performance of a sex-rejecting procedure.”

Unfortunately, none of this is new. Since the start of Trump’s term, the HHS has launched a full-scale ideological assault on gender-affirming care for minors with two clear goals. The first is the delegitimisation of transgender care for minors as a lifesaving medical practice, a war that has mainly been waged rhetorically. Aside from conducting and releasing a ‘comprehensive’ review of ‘best practices,’ which reaches the conclusion that conversion therapy is the most effective treatment for gender dysphoria in minors, the HHS has introduced terms like ‘sex-trait modification’ and ‘sex-rejecting procedures’ and is now legally tying patient ‘health’ to prohibiting gender-affirming care for trans kids.

The second goal is to designate gender-affirming care for adults as inherently optional and unnecessary. Accordingly, RFK Jr. has stripped trans care from being considered an Essential Health Benefit under the ACA and relaxed discrimination protections. This is part of a larger war against adult care that has seen 11 states’ Medicaid programs implement explicit exclusions and a further 9 (plus the federal government) deny care to transgender inmates.

But make no mistake: the new rule is a significant federal overreach. Under 42 USC § 1395, which pertains to Medicare, the federal government is prohibited from “exercising any supervision or control over the practice of medicine or the manner in which medical services are provided, or over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services; or to exercise any supervision or control over the administration or operation of any such institution, agency, or person.” In other words, the federal government can’t weaponise Medicare’s Conditions of Participation against certain procedures, and this is especially true here when considering that the exact procedures are still allowed in other contexts—that fact alone implicitly debunks the HHS’ claims about ‘safety.’

Another issue is with coercion. In the 2012 case NFIB v. Sebelius, the Supreme Court held, through two separate opinions, that Congress cannot force states to expand their Medicaid programs by threatening to withhold all federal funding for the program over noncompliance. Separately, in South Dakota v. Dole (1987), the court ruled that funding conditions—in that case, withholding 10% of federal highway funding if a state’s drinking age was lower than 21—must be ‘reasonable.’ Because the HHS is acting pursuant to Congressional authority, this principle of coercion—dubbed a ‘gun to the head’ in NFIB—also applies in this context.

This argument gets stronger when considering that Medicaid is a joint state-federal program. Under the proposed rule, states would also be forced to withhold their own funding from hospitals if they provide care that is entirely legal within their borders. And because so many people rely on Medicaid, refusing to accept federal funds to preserve gender-affirming care isn’t really an option at all. Considering that this rule is being adopted unilaterally and without explicit Congressional approval, it’s especially vulnerable to a challenge on this front.

And there’s one more problem: the rule doesn’t actually implement Trump’s EO 14187. This is because of the age line as it pertains to the definition of “child.” Trump’s order sets this to be 19, but the rule, as mentioned above, stops at 18. Although small, it absolutely matters. Should the HHS wish to lean on “presidential authority” in court, this deviation from that authority may end up harming them, as it shows they’ve made their own independent determinations when crafting the policy.

While this rule marks the Trump administration’s most aggressive action against gender-affirming care to date, there are also two others. By far the least significant is this one, which bans federal Medicaid reimbursements to states for “sex-rejecting procedures for children under 18” and federal CHIP reimbursements to states for “sex-rejecting procedures for children under 19.” In the context of the previous rule, the effect of this is essentially nonexistent. After all, hospitals would not be allowed to perform these procedures for trans minors in any context if they accept Medicaid, which means it wouldn’t be possible for providers to even request reimbursement for these procedures through Medicaid in the first place.

Finally, the HHS also announced it would clarify that Section 504 of the Rehabilitation Act of 1973’s disability discrimination protections (which apply to all federally funded entities) does not protect those with “gender dysphoria not resulting from physical impairments.” The agency says this move is necessary to “reassure recipients of HHS funding that policies preventing or limiting sex-rejecting procedures do not violate Section 504’s disability nondiscrimination requirements.” This is similar to the definition of disability found in Ohio law, which explicitly excludes “gender identity disorders not resulting from physical impairments.”

Despite the glaring legal vulnerabilities, lawsuits by providers against the rule will still take time. While challenges play out, there’ll likely be a window where many medical providers will be forced to stop treating trans kids—something that will have a chilling effect on an already extremely vulnerable group and inevitably lead to immense suffering. Thankfully, most Democratic-led states have already signalled a willingness to stand up to the Trump administration’s encroachment on gender-affirming care. Here, they have even more standing to do so, and it is something they must take advantage of.

Because, if the Trump administration is handed the freedom to unilaterally restrict healthcare in this way, it almost certainly won’t end here. This fight encapsulates reproductive rights, gender-affirming care for trans adults, healthcare for non-citizens, and anything else the administration chooses to target in the future. Simply put, Americans’ futures rest on what they allow the Trump administration to do to trans kids.