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Judge will rule against Kennedy’s declaration on gender-affirming care

The declaration illegally attempted to overrule state medical regulations, 21 states and D.C. argued

• March 19, 2026
• By Theresa Gaffney (Morning Rounds Writer and Reporter)

A U.S. district judge in Oregon said he will vacate a declaration made late last year by health secretary Robert F. Kennedy Jr. that asserted gender-affirming care for young trans people does not meet medical standards of care.

A coalition of states and D.C. immediately sued Kennedy over the declaration, calling it an overreach of Kennedy’s authority. The regulation of medicine is largely left up to states, and any federal rules need to go through public notice and comment periods.

The Department of Justice, representing HHS, pushed back on those claims, arguing that Kennedy’s declaration was simply an expression of his opinion without the force of law.

But at the end of oral arguments Thursday, Judge Mustafa T. Kasubhai said he sided with the plaintiffs. Kennedy’s declaration “has materially modified how — not even how the standard of care might apply in gender-affirming care, but that there is no standard of care that can be applied for even considering the provision of gender-affirming care in those plaintiff states,” he said. An official written decision is forthcoming. Kasubhai will also consider the states’ request to stop the implementation of the declaration or any materially similar policy.

In December, federal health authorities proposed two rules that would withhold federal funds in connection with gender-affirming care for young transgender people. If finalized, these rules would have a major financial impact on health institutions across the country, and will also likely face legal challenges. But experts said the accompanying declaration, which purported to “supersede” state and national standards of care, could have even wider potential consequences.

It states that “sex-rejecting procedures for children and adolescents are neither safe nor effective as a treatment modality for gender dysphoria,” and therefore “fail to meet professional recognized standards of health care.”

Currently, multiple states include gender-affirming care in their Medicaid programs, paid for by federal funds, according to court documents. The declaration and the proposed CMS rules would make that impossible, and also conflict with laws in several Democratic states that prohibit the exclusion of this care from state Medicaid programs.

Allie Boyd, an Oregon state attorney representing the states, pointed out that at least 17 hospitals have already been referred to HHS’s Office of Inspector General for investigation based on the declaration, leading many to stop providing gender-affirming care to youth. An investigation could lead to a provider being excluded from Medicare and Medicaid programs, which is “effectively a financial death sentence,” Boyd said.

Declarations are rare from federal secretaries. At the Department of Health and Human Services, they have mainly been used to declare public health emergencies.

Kathryn Alkire, a Department of Justice attorney, argued Thursday that the declaration was simply an expression of Kennedy’s opinion that didn’t exercise any authority. “The declaration does not change the process by which OIG conducts exclusion proceedings,” she said. “It does not create a binding standard.”

But Kasubhai wasn’t convinced.

“The declaration itself is no mere opinion,” he said. “When the government suggests that Secretary Kennedy is not invoking any authority, so therefore there is no authority for me to consider rendering an opinion over, it’s a recursive and incoherent sort of logic.”

As the government argued in an attempt to downplay the declaration’s legal effects, the declaration is just one factor that the HHS Inspector General might consider when deciding whether to exclude a provider from Medicare or Medicaid.

“There’s a theme of break it and see what others will do,” Kasubhai said regarding the litigation he has presided over in the world of administrative law. “And that’s not a system or method committed to the rule of law.”