Who We Are
OutFront Minnesota is an advocacy organization that has been supporting our community in Minnesota since 1987. We provide this public comment on behalf of our organization and our members.

Summary
OutFront Minnesota strongly opposes the proposed rulemaking entitled “Prohibition on Federal Medicaid and Children's Health Insurance Program Funding for Sex-Rejecting Procedures Furnished to Children” (CMS–2451–P) which seeks to eliminate federal reimbursement for essential healthcare services for transgender youth and their families.

We believe that this proposed rule violates federal nondiscrimination law, would create significant implementation challenges given the current state of litigation, and circumvents the legislative process and the right of states to make determinations regarding care in contrast to the Supreme Court’s guidance on similarly situated care debates.

On this basis, we urge the federal government to withdraw this proposed rule.

Further, we offer comments on the sex definitions proposed by the Department of Health and Human Services, response to the cost and claims analysis presented in the proposal, and offer qualitative responses from Minnesotans.

We encourage the Department of Health and Human Services to substantively engage with our communities and the real concerns raised by our organization and fellow commenters.

The Proposed Rule Violates Nondiscrimination Law
This proposed rule facially discriminates against transgender and gender diverse youth and their families who rely on Medicaid - by singling them out solely on the diagnosis pathway they would receive to access this care. The proposed rule specifically limits reimbursement for care related to gender transition; while creating an exemption for that same care when provided to other individuals:

“...would not include procedures undertaken: (i) to treat a child with a medically verifiable disorder of sexual development; (ii) for purposes other than attempting to align a child’s physical appearance or body with an asserted identity that differs from the child’s sex; or (iii) to treat complications, including any infection, injury, disease, or disorder that has been caused by or exacerbated by the performance of sex-rejecting procedure(s).”

While the Department of Health and Human Services may seek to apply the Supreme Court’s ruling in Skrmetti to offer a legal basis for differentiating between these applications; this framework still engages in facially discriminatory construction that is not supported by medical evidence.

Further, Section 1557 of the Affordable Care Act “prohibits discrimination on the grounds of race, color, national origin, sex, age, or disability in certain health programs and activities” including in Medicaid programs. Legal challenges around this rule’s application to sexual orientation and gender identity are ongoing - as noted by the Department of Health and Human Services - but it is indisputable the Supreme Court’s findings in Bostock are worth weighing in the application of proposed rules that as we assert facially discriminate on the basis of gender identity.

In states like Minnesota, this application of policy would be in direct violation of long-established nondiscrimination policies. This is true for many of the states where this care has not been prohibited at a state level - leaving states to choose between violating nondiscrimination policies passed by their own elected bodies or finding alternative funding to meet those requirements. 

Litigation in Process Presents a Significant Challenge to the Implementation of Proposed Rules.
As noted by the Department of Health and Human Services in their discussion of the proposed rule, many of the executive orders and actions related to this care are currently under active litigation in states including challenges brought forth by Minnesota. The Department suggest that this is not a barrier to the currently proposed rulemaking:

“We note that if this proposed rule were to be finalized, it would not conflict with those preliminary injunctions because, among other things, it would be based on independent legal authority and section 5(a) of E.O. 14187 and not the enjoined sections of the executive orders. In any event, any regulatory provisions on this issue would not be effective until the specified effective date of any final rule, and would not be implemented, made effective, or enforced in contravention of any court orders.”

We disagree.

A full reading of the injunctions impacting the multiple executive orders targeting the recognition of gender identity and continued funding for impacted states and entities lead us to believe that the removal of funding under 5(a) would have little substantive difference from the currently enjoined sections 4 and 3(e)(g) in the respective orders - the only difference being the timeline of the “immediate and irreparable injuries” caused by a rulemaking process in comparison to an executive order.

As noted clearly in the injunction in Washington the “enforcement of [the respective executive orders] will cause one of two concrete harms to Plaintiffs: they will either (1) be forced to halt any treatment or funding for gender dysphoria or (2) lose federal funding.” While the method of this particular effort to limit care funding may be different - utilizing an agency rulemaking process rather than unilateral action - the injury to states like Minnesota and provider systems in our state is the same.

A proposed rule that faces clear and immediate threats of running afoul of established litigation strikes our organization as a misuse of taxpayer funds - particularly when the federal government has clear pathways to advancing this particular policy objective through work with Congress.

The Supreme Court Has Clearly Outlined the Importance of Legislative Decisionmaking 
As we discuss in our similar comment around the proposed rule addressing conditions of participation, the Supreme Court has often given deference to state and federal legislative bodies - this is succinctly presented by Justice Anthony Kennedy who wrote in Gonzalez v. Carhart, "The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Rarely has an area of medical science been so squarely implicated than in the discussion of pediatric care - which has been the subject of numerous pieces of legislation at state, federal, and local levels. At present there is already a bill in Congress that would seek to accomplish just what this rule proposes.

For many states across the country, this is already a question that legislatures have actively debated at length throughout the past decade. This rulemaking process seeks to supersede the work of legislatures - like Minnesota - that have chosen to support continued access and provision of this care at a state level.

We encourage the federal government to give deference to states and their critical role in care management and programs.

Proposed Sex Definitions are Insufficient and Exclusionary
The Department of Health and Human Services specifically invited input around its definitions of sex within this proposed rule; these definitions - which we note bear similar verbiage to model legislation proposed by Heritage Foundation are as follows:

“We also propose to define ‘‘female’’ as a person of the sex characterized by a reproductive system with the biological function of (at maturity, absent disruption or congenital anomaly) producing eggs (ova). We propose to define ‘‘male’’ as a person of the sex characterized by a reproductive system with the biological function of (at maturity, absent disruption or congenital anomaly) producing sperm. We propose to define ‘‘sex’’ as a person’s immutable biological classification as either male or female.”

As noted by the American Society of Reproductive Medicine “proposals to define sex into two easily determined categories are unsupported by science and oversimplify the intricate nature of human biology.”

“About 1.7% of people are born intersex” meaning they have “differences in sex traits or reproductive anatomy [including] many possible differences in genitalia, hormones, internal anatomy, or chromosomes.”

While this definition may seek to account for these natural variations through its "anomaly" language, we would counter that this is not in fact an anomaly, but the natural variation of the rich human experience. And further; because many of these differences are not immediately apparent when an individual is most frequently “classified” by a medical professional making a visual examination at birth - they present a complex challenge to any legally established fixed definition of biological sex.

Further, the lived experience of all humans is proof positive that biological sex is something that is endlessly varied and mutable. Regardless of our sex assigned at birth and our decisions regarding care - we experience variations in hormone levels, the development of secondary sex characteristics, and the ability to reproduce (or not), and meaningful and complex biological changes to our sex characteristics throughout the course of our lives. Transgender and gender diverse people represent an uniquely clear - and we would assert, beautiful - example of the mutability of our sex characteristics. But these traits and the desire to navigate them through medical interventions - from medications and procedures addressing infertility, hair loss, menopause, gynecomastia, and many other concerns - are not unique to transgender or gender diverse populations.

More complex definitions of biological sex are needed to better describe the human experience, and we further encourage the Department to revisit definitions of sex and gender that incorporate a recognition of gender identity as an important facet of our personal and cultural understanding of gender and sex.

Comment on the Cost and Utilization Figures and their Implications 
We welcome the opportunity to explore the figures presented by the Department of Health and Human Services for utilization of pediatric gender care at a national level.

The Department of Health and Human Services projects that by eliminating reimbursement for this care, “Total Medicaid and CHIP spending would be reduced by $318 million over 10 years, Federal spending would be reduced by $188 million, and State spending would be reduced by $130 million.” These figures annually represent roughly 0.0034% of the $931.7 billion spent on care through Medicaid in 2024.

Given that there are 36,639,540 youth enrolled in Medicaid or CHIP programs as of October 2025, and rough prevalence estimations for the transgender population in the United States place figures at no less than 1% we would expect that there should be at least 366,395 transgender or gender diverse youth enrolled in Medicaid and CHIP.

If we used a cost-basis of $2,000 per patient - a rough figure - that would equate to approximately 15,300 patients utilizing this care; 4% of the population of transgender and gender diverse youth enrolled in these programs - or 0.04% of the total population of youth in these programs. 

Looking at those prevalence figures and the overall expenditures we find it hard to argue that this care is overutilized; either the majority of transgender and gender diverse youth and the families on Medicaid and CHIP are simply not able to access medical or surgical interventions or they are choosing not to utilize them.

 

Responses from Transgender and Gender Diverse Minnesotans
In response to the publication of the proposed rules, OutFront Minnesota sought comment from members of our own communities.

We note that in our long history of advocacy work we are in a troubling moment where many expressed concerns for how the federal government might use information gathered in those public comments to personally target members of our LGBTQ+ communities. We share this to note that we believe that public comments that may be received by the Federal Register likely do not fully account for the full breadth of community interest in these rules.

Amongst the comments that were directly provided to our organization, we heard a broad range of perspectives - primarily from transgender and gender diverse adults and the parents of both transgender youth and transgender adults. Universally these comments opposed the current rules proposed by the Department of Health and Human Services, described the significant impacts to their health and well-being of disruptions to care, and expressed the benefits of gender care in their lives and the lives of their loved ones.

Those voices include a transgender veteran who came out later in life and shared:

“I served in the U.S. Army for 23 of those years and the minute I finally declared my truth all my service, commitment, contributions, and sacrifices were lost. The label of being trans was the only aspect of who I was that many people could see. No one should have their life distilled down to such a simple calculus. And kids deserve to be supported in their journey to find their truth. I know from experience that running and hiding from who you are is a wasted effort. Instead I hope kids nowadays can be given the space and time and support to be true to themselves.”

A parent of a transgender adult who shared:

“My child has been transgender all her life, something she felt she had to resist throughout her childhood. This led to great psychological struggles until she came out very slowly in college and then increasingly as an adult. The support of policies in Minnesota helped her as did medical assistance and an increasingly understanding world as gay marriage became legal. She leads a successful life, is married and with 2 wonderful kids. It's important that society supports all people and provides them with the medical attention experts know works to help all thrive.”

A parent of a transgender youth who urged:

“We did it all right. We saw doctors. We had psychological assessments. We had therapy. We made thoughtful, educated, best medical practice decisions together with the child, the medical team, and the parents. We supported and loved our child throughout the entire process. We started gender affirming care as recommended based on the severe case of gender dysphoria that persisted for years. My child depends on this care. Please see my child for who she is- a beautiful, creative, smart, passionate kid who will contribute positively to our world and who also happens to be trans. Please support gender affirming care because it’s the right thing to do and is backed by science.”

Another transgender adult who shared:

“When I came out to my family, I was terrified I would lose them. I often wonder what it would have been like to come out in a world where being trans was considered just another fact about someone, rather than this huge ordeal, seen as “sex rejecting,” in your words. Today, I worry about taxes, what we’re having for dinner. I think about gender, and my own gender, much less frequently. My life has become whole, peaceful, and I get to focus on all the little things everyone else does. I own a house, I have a steady job, and I contribute taxes to the IRS. I sometimes think about what my journey would have been like if I knew about transgender people when I was young. I can’t know these answers, or what would have changed if life had been different. What I do know is these kids coming after me, they just want to live as themselves.”

These are just some of the many stories that our community members shared with us and they echo a widely understood feeling amongst members of transgender and gender diverse populations: That their negative experiences with gender largely come from a time when they weren’t able to fully live as themselves and from concerns about treatment by their families, their workplaces, their communities, their health care providers, their government.

Early interventions and support for the transgender and gender diverse youth who need them are not only essential, they are transformative and allow transgender kids to just live their lives.

Conclusion
Transgender and gender diverse people have been part of the human story for all of history. In Minnesota they are our elected leaders, valued community members, teachers, artists, parents, people of faith, and people - just living their lives. 

While the cultural, legal, and medical frameworks surrounding transgender and gender diverse individuals have changed - the existence of these individuals is an indisputable fact of human experience. And like all of us - they deserve access to appropriate health care.

We believe that these proposed rules would needlessly limit care that is best practice health care - carefully tailored to meet the needs of families and patients by expert care providers. These proposals stand in contrast to the policy decisions of states like Minnesota where we continue to support and protect this care.

We urge the Department of Health and Human Services to withdraw these rules and instead engage in meaningful dialogue with transgender individuals, their families, and the care providers who serve them to learn how they can best serve and support all of us.