Public Comment Opposing CMS Hospital Rule Restricting Gender-Affirming Care for Youth

Submitted via Federal eRulemaking Portal: http:// www.regulations.gov

February 17, 2026

Centers for Medicare and Medicaid Services
U.S. Department of Health and Human Services
Attention: CMS-3481-P

Re: [CMS-3481-P] RIN 0938-AV87 Medicare and Medicaid Programs; Hospital Condition of Participation: Prohibiting Sex-Rejecting Procedures for Children

Dear Dr. Oz and Secretary Kennedy,

Human Rights Watch submits this comment in opposition to the proposed rule issued by the US Centers for Medicare & Medicaid Services (CMS) and the Department of Health and Human Services (HHS), RIN 0938-AV87; CMS-3481-P; Medicare and Medicaid Programs; Hospital Condition of Participation: Prohibiting Sex-Rejecting Procedures for Children, published on December 19, 2025.

Human Rights Watch is a nonprofit, nongovernmental human rights organization that investigates and reports on human rights abuses in approximately 90 countries. For four decades, we have documented violations and pressed governments and institutions to comply with their obligations under international law. We have published numerous reports on discrimination and abuse faced by transgender people in the United States, including the severe harms that result when transgender youth are denied medically necessary care.

In June 2025, Human Rights Watch published a 98-page report, “They’re Ruining People’s Lives”: Bans on Gender-Affirming Care for Transgender Youth in the United States, documenting the severe harms transgender youth and their families experience when laws restrict access to evidence-based, medically necessary care.[1] Between 2023 and 2025, Human Rights Watch conducted 51 interviews with transgender youth, parents, and healthcare providers across the United States. Our findings show that severe restrictions on gender-affirming care can destabilize young people’s mental and physical health and force families into impossible choices—incurring unaffordable out-of-pocket costs, traveling long distances, or going without rights-essential care altogether.

The proposed rule would add a new provision to the Medicare hospital Conditions of Participation (CoPs) at 42 C.F.R. part 482, prohibiting participating hospitals from providing gender-affirming care to patients under age 18.[2] Because compliance with Medicare CoPs is a prerequisite for participation in both Medicare and Medicaid, the rule would effectively apply to the vast majority of hospitals nationwide and would govern care for all patients within those facilities, regardless of payer source.

The Social Security Act grants CMS authority to establish hospital participation requirements to protect the health and safety of patients.[3] These CoPs are designed as baseline patient-protection standards that ensure hospitals deliver safe, effective, and medically appropriate care. They regulate core aspects of hospital operations, including patient rights, medical staff governance, quality assessment, and clinical decision-making processes. Hospitals must meet these requirements to participate in federal health programs, and they are intended to promote high-quality, patient-centered care across all service lines.

The proposed rule is not a defensible application of this framework. Rather than establishing reasonable safeguards, it would impose a categorical prohibition on an important category of medically-indicated treatment, regardless of individual clinical circumstances. In doing so, it would transform the CoPs from a patient-protection framework into a mechanism for denying care.

The proposed rule would jeopardize transgender young people's right to health under international human rights law. The International Covenant on Economic, Social and Cultural Rights (ICESCR), which the United States has signed but not ratified, recognizes in article 12 the right to the highest attainable standard of physical and mental health.[4] While the Convention is not binding on the United States, the ICESCR along with the interpretive guidance that has grown up around it is a useful and authoritative guide to how policymakers should work to realize the human right to health that all people enjoy. Under the ICESCR framework, governments are required to ensure the right to health is enjoyed without discrimination based on race, sex, religion, or “other status,” which the Committee on Economic, Social and Cultural Rights interprets to prohibit discrimination on the basis of sexual orientation and gender identity.[5]

Under the ICESCR, the right to health explicitly includes the availability and accessibility of healthcare goods and services without discrimination. General Comment 14, which interprets the right to health under the ICESCR, states that accessibility is defined by non-discrimination, physical accessibility, economic accessibility, and information accessibility.[6] It states that “health facilities, goods and services must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups.”[7] The United States, in order to respect the right to health, should refrain from measures that restrict the availability of essential health care goods and services or impose discriminatory barriers to medically-necessary care. The proposed policy would create exactly this kind of discriminatory harm, by dramatically reducing available care options for transgender youth seeking gender-affirming care, thereby undermining their right to the highest attainable standard of health.

The proposed rule would also violate transgender young people’s right to freedom from discrimination under international law. Article 26 of the International Covenant on Civil and Political Rights (ICCPR) guarantees equal protection of the law without discrimination.[8] The UN Human Rights Committee has interpreted this to prohibit discrimination based on gender identity, among other grounds.[9] Blanket restrictions on gender-affirming care, such as the proposed provisions to the CoPs, constitute discrimination by denying transgender individuals access to medically necessary treatment for “gender dysphoria,” a condition which is based on one’s gender identity. These restrictions are not an effort to regulate health services in order to protect patients, but an effort to deny a particular class of people access to rights-essential medical care altogether.

By conditioning hospitals’ participation in Medicare and Medicaid on a categorical prohibition of gender-affirming care for young people, the proposed rule would effectively eliminate access to medically necessary treatment within hospital settings nationwide, regardless of individual medical need. The rule would operate as a total or near-total nationwide ban within hospital-based settings, disrupting ongoing care for young people in states that currently permit such treatment and forcing hospitals to abandon evidence-based clinical practices.

Hospital CoPs exist to ensure that patients receive safe, appropriate, and medically necessary care grounded in professional standards and individualized clinical judgment. If CMS identifies gaps in access, consistency, or quality of care, the appropriate response is not to withdraw rights-essential care altogether.

For the reasons set out below, Human Rights Watch urges CMS and HHS to withdraw the proposed rule in its entirety.

I. The Proposed Rule Jeopardizes Clinically Accepted Models of Care and Forces Hospitals to Abandon Best Practices

The proposed rule would force hospitals into an impossible choice that would undermine their ability to provide quality health care. Under the proposed rule, hospitals would either have to cease the provision of gender-affirming care for all young people, without consideration for individual medical need, or refuse and either be forced to close or to significantly curtail the provision of health care to patients more generally. Either option would undermine the right to the highest attainable standard of health by making this care inaccessible, unaffordable, or sub-standard.[10] Moreover, to the extent that patients and their families will continue to seek out the legal, medically indicated care that they need, preventing hospital systems from providing that care may diminish the quality and consistency of services for young people.

Under prevailing norms of good practice, gender-affirming care for transgender youth is provided through a slow, individualized, and iterative clinical process, consistent with clinical practice guidelines developed by the Endocrine Society[11] and the World Professional Association for Transgender Health (WPATH).[12] These guidelines are supported by major medical associations including the American Medical Association,[13] the American Academy of Pediatrics, the American Psychological Association,[14] and the American Academy of Child and Adolescent Psychiatry.[15]

These standards recommend that gender-affirming care be provided through a multidisciplinary healthcare team, which may include therapists, pediatricians, pediatric endocrinologists, and other specialists as needed. Parents and guardians are nearly always involved.[16] In appropriate cases, social workers, affirming faith leaders, and other supportive professionals may also help families navigate care as part of a broader support system.[17]

Gender-affirming care often begins with social transition, a non-medical process that may include adopting a new name, using different pronouns, changing clothing styles, and altering hairstyles. Social transition can allow transgender youth to explore their gender identity and expression without medical intervention. For many young people, social transition alone is insufficient, such that other interventions are helpful or even necessary to alleviate significant mental distress.

Consistent with prevailing clinical standards, young people seeking medical care typically undergo individualized assessment, including mental health screening. For adolescents who continue to experience persistent dysphoria and seek medical support, treatment may include puberty-delaying medication and hormone therapy.

Puberty-delaying medications and menstrual suppressants may be offered early in puberty—in consultation with the young person, their parents or guardians, and medical providers—to pause unwanted pubertal changes. The effects of puberty-delaying medications and menstrual suppressants are considered reversible.[18] These medications are often used to give young people time to continue exploring their gender identity before potentially pursuing other care later in adolescence or adulthood. Studies indicate that access to puberty-delaying medications can improve mental health outcomes for young people who desire this treatment.[19]

Hormone therapy is generally considered safe when appropriately prescribed and monitored.[20] Depending on the duration of use, some effects may be partially reversible.[21] As with other medical treatment, informed consent includes discussion of potential risks, benefits, and side effects, including possible impacts on fertility. Major medical associations have emphasized the importance of discussing infertility risk and fertility preservation options prior to initiation of hormone therapy.[22]

Many of the medications used as part of gender-affirming care have long been used in pediatric care for non-transgender patients. For example, puberty-delaying medications have been prescribed for decades, including since the FDA approved them in 1993 for treatment of precocious puberty,[23] a condition in which children enter puberty unusually early.

In the United States, gender-affirming surgeries are exceedingly rare among transgender youth. Available evidence indicates that such procedures are far more common among non-transgender youth, including procedures used to align bodies with sex assigned at birth. A study published in the Journal of the American Medical Association (JAMA), analyzing US medical data from 2019, found that of approximately 150 cases of youth under age 18 receiving gender-affirming surgery, 97 percent were chest reduction surgeries for non-transgender male youth with gynecomastia (a condition causing enlargement of mammary tissue in males).[24] The study further found that among adolescents ages 15 to 17, the rate of undergoing gender-affirming surgery with a transgender-related diagnosis was 2.1 per 100,000.[25]

Most youth who receive gender-affirming care continue this care into adulthood, with a continuation rate of approximately 98 percent.[26] This high continuation rate aligns with evidence of the care’s importance: studies have consistently found that gender-affirming care is associated with improved mental health outcomes, including lower rates of depression and suicidality.[27]

Human Rights Watch has documented how this clinically guided model allows care to be tailored to a young person’s development and needs.

Ethan, the father of a 17-year-old trans girl in a state with a gender-affirming care ban in effect, described the quality of care his daughter received prior to the ban: “You hear these bills talk about handing out hormones... but none of that happened in the first year or more.... The doctors were there to support [my daughter], with no pressure. Mental health professionals spent time talking to her, asking about school, her friends.... It means a lot to us as parents.”[28]

Sarah, the mother of a 17-year-old transgender girl, Mylie, described how her daughter accessed care through a pediatric endocrinologist after months of evaluation. Over several years, Mylie’s treatment was adjusted gradually, allowing her to develop alongside her peers. Sarah explained: “She was given the opportunity to have the blockers so her body did not go further into a transition into a body that she does not identify with… All those things immediately reduced the anxiety.”[29]

Mylie added: “It was much more enjoyable to be in school. I didn’t have to worry about my gender identity or what I presented as. I just had to worry about school.”[30]

By imposing a categorical prohibition on gender-affirming care for transgender young people as hospital CoPs, the proposed rule replaces individualized medical judgment with a blanket exclusion that would result in sub-standard care and discriminatory medical treatment. These outcomes are incompatible with international human rights law including the right to the highest attainable standard of health under ICESCR and freedom from discrimination under ICCPR. 

Research has documented that many young transgender people and their families go to tremendous lengths to obtain gender-affirming care in the face of state restrictions and federal threats, including moving across the United States to areas where that care remains available, largely because of the profoundly positive effects of that care for themselves and their loved ones.[31] Coercing hospitals into terminating that care makes it more likely that families will have to forego certain aspects of best-practice care, will experience long waiting times and disruptions in care, or will have fewer choices of providers and possible treatment options that best meet their particular and individualized needs. To the extent that CMS and HHS are invested in improving treatment outcomes and ensuring that young people experience effective, quality care, greater funding and support for high-quality treatment, not the withdrawal of support for families obtaining this care, is essential.  

II. Gender-Affirming Care Is Medically Necessary for Many Children, and Depriving Children of That Care Violates Their Right to the Highest Attainable Standard of Health and Their Right to Non-Discrimination

The proposed rule is incompatible with the right to the highest attainable standard of health because of the sweeping and discriminatory way it would restrict the availability of rights-essential medical care. Rather than representing a good faith attempt to regulate an important area of medical care in favor of patient safety and wellbeing, the rule would block the provision of gender-affirming care altogether. It accomplishes this in part by redefining gender-affirming care as a different, more nefarious kind of practice in a way that bears no relationship to reality. It would compel hospitals to deny care that is widely recognized within mainstream medicine as appropriate, evidence-based, and in many cases medically necessary.

As outlined in the previous section, established good practice in gender-affirming care adheres to a multidisciplinary, iterative, and individualized model of care intended to alleviate distress arising from gender dysphoria as well as other associated conditions. These standards of care reflect broad professional consensus and are grounded in clinical evidence. The proposed rule departs sharply from these standards by mischaracterizing gender-affirming care as “sex-rejecting procedures” and defining these as including any intervention that “disrupts or suppresses” pubertal development or alters sex-based traits. This framing is inconsistent with how gender-affirming care is understood and practiced within mainstream medicine. Major medical organizations in the United States recognize gender-affirming care as a range of practices that can be essential to supporting transgender people’s health and wellbeing.

Under international human rights law, the right to health includes the right to access quality and culturally appropriate health care regardless of one’s ability to pay. Governments working to respect, protect, and fulfil this right should take a range of steps including the avoidance of measures that restrict the availability, accessibility, acceptability, or quality of healthcare goods, facilities, and services.

The government’s denial of gender-affirming care to transgender youth who experience clinically significant gender dysphoria is incompatible with the right to health, and amounts to discrimination on the basis of gender identity.

The foreseeable harms that result from denying gender-affirming care underscore why such denial is incompatible with the right to health. Because of gender dysphoria and social discrimination,[32] transgender youth compared to non-transgender youth experience significantly higher rates of depression, anxiety, self-harm, and suicidality than their non-transgender peers, with studies showing markedly elevated rates of depression (50 percent compared to 20 percent), anxiety (26 percent compared to 10 percent), and self-harm (17 percent compared to 4 percent).[33]

A 2022 survey of more than 80,000 transgender people in the United States found that 78 percent of respondents had considered suicide and 40 percent had attempted suicide, with youth reporting the highest levels of serious psychological distress.[34] The survey also found that transgender people of color reported higher rates of suicidal thoughts and behaviors than their white counterparts.[35]

Medical and public health literature consistently shows that access to gender-affirming care can alleviate distress associated with gender dysphoria and improve mental health outcomes, while withholding or discontinuing such care exacerbates distress and can heighten the risk of serious harm.[36]

Human Rights Watch has documented the profound impact that the denial of gender-affirming care has on transgender youth and their families. Kai, a 14-year-old transgender boy, described experiencing suicidal ideation from early childhood and deep distress arising from untreated dysphoria, stating that he did not recognize himself and questioned why he should continue living a life that did not feel like his own.[37] Despite the support of his family and mental health provider, Kai was unable to access gender-affirming care due to his state’s ban, leading to escalating panic attacks and suicidal ideations.

Similarly, Mylie, a 17-year-old transgender girl, described a severe decline in her mental health after her state enacted a ban that interrupted her access to gender-affirming care, resulting in social withdrawal and depression.[38] Following the ban, Mylie attempted suicide twice. Her mother described constant fear and the need to monitor her daughter closely, experiences the family had never faced before the care ban was enacted.

Rachel, the mother of 18-year-old Sophia, explained that her daughter had received gender-affirming care in a careful and gradual manner, with doctors closely monitoring her development.[39] While receiving care, Sophia’s mental health improved. After her state enacted a ban and she lost access to treatment, Sophia’s mental health rapidly deteriorated. She withdrew from school, began self-harming, and was hospitalized after expressing plans to attempt suicide. During hospitalization, Sophia missed fourteen doses of her hormone regimen, intensifying her anxiety and distress.

Gender dysphoria is a serious medical condition with potentially life-threatening consequences if left untreated or if treatment is disrupted. Hospital CoPs are expressly designed to ensure that patients receive safe, appropriate, and medically necessary care based on individualized clinical judgment, and that hospitals act in the best interests of the patients they serve. Under 42 C.F.R., hospitals are required to protect patient rights, uphold professional standards of care, and preserve the authority of medical staff to make clinical decisions grounded in accepted medical practice. Similarly, international human rights standards, including ICESCR, oblige states to ensure that care is available, accessible, acceptable, and of good quality. Rather than meeting these imperatives, the proposed rule would compel hospitals to deny medically indicated, potentially lifesaving care to a population protected from discriminatory differential treatment under international law. In doing so, the rule places transgender young people at foreseeable risk of serious harm and directly undermines the core purposes of the federal hospital participation framework and international human rights standards.

III. The Rule Will Harm Hospital Systems and the Health Workforce

Human Rights Watch’s research demonstrates that restrictions on gender-affirming care produce cascading harms that extend well beyond the youth they purport to target, significantly affecting hospital systems, healthcare workforces, and access to care for transgender adults and non-transgender patients alike.

In states with bans on gender-affirming care for youth, Human Rights Watch documented harmful “spillover effects” for transgender adults. Some physicians, fearful of legal repercussions or social backlash, have stopped providing care to all transgender patients regardless of age, or have left institutions entirely.[40]

Eli, an LGBT organizer in a state with a youth care ban, reported that seven local practitioners—including two endocrinologists—ceased providing gender-affirming care to adults following the state ban.[41] As a result, transgender patients were forced to leave longstanding primary care providers, while remaining clinics became overwhelmed and stopped accepting new patients, particularly those covered by Medicaid.

These effects are not limited to gender-affirming care. When specialists such as pediatric endocrinologists leave a state or reduce their practice, hospitals lose capacity to treat a wide range of conditions unrelated to gender identity, including diabetes, growth disorders, and other endocrine conditions.[42]

The proposed rule would likely replicate and intensify these harms nationwide by conditioning hospitals’ participation in Medicare and Medicaid on a categorical prohibition of gender-affirming care for young people. Faced with the risk of losing federal program eligibility, hospitals are likely to adopt restrictive compliance policies, withdraw services, or avoid treating transgender patients altogether.[43] This dynamic, including a likelihood of overcompliance, directly undermines the purposes of the hospital CoPs which are intended to promote quality, safety, and access to care as well as the right to the highest attainable standard of health under international law. 

Human Rights Watch further documented that restrictions on gender-affirming care have undermined some hospitals’ ability to recruit and retain medical professionals. Some providers reported that gender-affirming care programs were previously viewed as institutional strengths that attracted residents and medical students. Following the imposition of restrictions, these providers stated that their hospitals struggled to recruit new trainees, with medical students and residents increasingly avoiding institutions where they cannot practice medicine consistent with their ethics and training.[44] One provider described how a previously robust pediatric gender clinic was forced to halt services for youth, weakening the institution’s competitiveness for top candidates.[45]

These workforce impacts may compound existing shortages. States that have enacted bans on gender-affirming care already face severe deficits in pediatric and adolescent medicine providers, with approximately one-third the number of adolescent medicine specialists compared to states without such bans.[46]

Unlike state-level restrictions, the proposed rule would apply across hospital systems nationwide that rely on federal funding, leaving providers with few pathways to provide care. Over time, this could deter some trainees from entering already under-resourced fields such as pediatrics and pediatric endocrinology and weaken hospital systems’ capacity to deliver comprehensive care to all patients.

Rather than advancing CMS’s goals of quality improvement and patient safety, the proposed rule would strain already overburdened hospitals, exacerbate provider shortages, and reduce access to essential medical services for a broad range of patients.

Conclusion

The proposed rule would force hospitals to deny medically necessary care to young people based on their identity, placing many at serious risk of physical and mental harm. The rule mischaracterizes the nature and purpose of gender-affirming care and relies on ideology rather than medical evidence or established clinical standards. If enforced, the rule would operate as a nationwide mechanism to functionally eliminate access to medically necessary care for many transgender young people within hospital settings. Rather than advancing patient safety or quality of care, the rule would destabilize young people’s health, is incompatible with their right to the highest attainable standard of health, and violates their right to be free from discrimination.

The proposed rule is also inconsistent with the purpose and structure of the hospital CoPs, which are designed to ensure safe, appropriate, and patient-centered care grounded in professional medical judgment. By imposing a categorical prohibition on medically indicated treatment, the rule would undermine the core function of the CoPs and risk destabilizing hospital systems.

We request that CMS and HHS take these comments into account and withdraw the proposed rule in its entirety. Please contact us if you have questions regarding our comments. Thank you for your consideration.

Sincerely,

Yasemin Smallens
Acting Researcher
LGBT Rights Division
Human Rights Watch