NH trans teens ask federal judge to pause rule banning Medicaid-funded gender-affirming care

In August, the Trump administration issued a new rule: no Medicaid funding for most types of gender-affirming care for children.

Now, a group of transgender New Hampshire girls are suing the federal government to reverse the change, and U.S. District Court Judge Steven McAuliffe is deciding whether to pause the rule during the yearslong legal battle the lawsuit is likely to entail.

The rule came from the Centers for Medicare and Medicaid Services in August and took effect Oct. 13. The ban encompasses transition surgery and hormone blockers for those under 18. President Donald Trump and Republican Party leaders claim gender dysphoria isn’t real, a position at odds with most major medical organizations.

During a hearing in Concord’s federal courthouse last month, attorneys from a coalition of nonprofits, including GLBTQ Legal Advocates and Defenders (commonly known as GLAD) and the ACLU of New Hampshire, pushed McAuliffe to grant a temporary injunction to pause the rule.

One of the trans teenagers, using the pseudonym “Kylie Coe,” has been struggling in school as her body changes without the puberty blockers she used to receive through Medicaid, her attorney, GLAD’s Chris Erchull, told the judge. Blockers cannot undo changes, he emphasized, but can only prevent them. Erchull said as her body begins to change again, classmates are starting to see her as a boy. 

“Most of Kylie’s classmates only know her as a girl,” Erchull said.

For that reason, he said, it’s urgent that the court pause the rule.

However, Erchull spent most of the hearing trying to establish the lawsuit’s legal merits, giving the first look into how the case will be litigated. At the core of that argument is the EPSDT, or early and periodic screening, diagnostic and treatment mandate. In 1967, Congress required Medicaid to cover any services medically necessary to sufficiently offer early and periodic screening, diagnostics and treatment. Erchull argued that the law forbids the Trump administration from cutting the services.

“Congress cannot have intended EPSDT to apply except when the president disagrees,” he said.

Erchull argued that, based on previous precedent, qualified medical providers and states — not the federal government — determine what is medically necessary. He pointed out that medical providers overwhelmingly support this kind of care.

“That can’t be right,” McAuliffe retorted. “The system isn’t at the whim of any healthcare provider that says this is medically necessary. Someone has to make those decisions.”

The judge appeared skeptical that CMS was unable to make those decisions entirely.

“We all understand the concept that agencies don’t legislate,” he said. “But I’m having trouble with your argument.”

McAuliffe appeared to see gender-affirming care as different, on a legal basis, from most types of care covered under the EPSDT standard because of the political issue it’s become.

“They’re overriding Congress’ mandate?” he asked. “OK, show me the mandate. … I don’t see anything in there about gender dysphoria. That’s a sociopolitical issue.” 

In 2025, the New Hampshire Legislature banned this type of gender-affirming care for children. However, it grandfathered in kids who were already receiving the care. The ban became a point of contention during the hearing as McAuliffe interrogated Erchull on why the ban doesn’t mean that the state  — which Erchull argued is responsible for, alongside providers, determining medical necessity — deems the care medically unnecessary. Erchull argued that because his specific clients — four teenage transgender girls and their families — were grandfathered in, that means the state deemed it necessary for them.

Stephen Tagert, a trial attorney for the Department of Justice, represented the federal government in the hearing.

“This is not about any sort of ban (on gender-affirming care),” he said. “This is about whether the federal government pays for it.”

McAuliffe appeared skeptical.

“It’s an effective ban,” he said. “Name me a state that has continued to fund the care. There’s none.”

McAuliffe also questioned why CMS was doing this now. He pointed out that the federal government regularly approves New Hampshire and other states’ Medicaid plans and it approved this one before. Why, he asked, is it suddenly intervening after already having approved the plan?

Tagert said the question “is irrelevant because New Hampshire and the federal government are aligned.” He pointed to the state’s 2025 ban.

The judge asked him to specify the federal government’s legal authority. Tagert argued that because the government has the authority to ensure medically necessary care is covered, it has the authority to ensure medically unnecessary care isn’t. He called it “two sides of the same coin.”

He seemed to lose the judge.

“Coming in here, I generally agreed with you,” McAuliffe told Tagert, “until I came in here and heard it’s the rule that’s the problem.”

The parties disagreed about whether the federal government followed the proper steps — allowing sufficient public comment, meaningfully considering alternative courses of action, etc. — an issue that’s likely to be fought over for many months.

After the hearing, Erchull told reporters outside the courthouse that “the judge really did seem to understand the harm that’s going to come to the families that we represent in this case and seemed to understand how significant it is for them and their entire futures to be able to continue accessing the care that they desperately need as young people struggling with gender dysphoria.”

Federal judges are known to be vigorous in their questioning of both parties in court, making it difficult to parse whether a judge is buying an attorney’s overall argument.

“By the end of the oral arguments, I think that we had convinced the judge to take a closer look at what EPSDT actually requires,” he continued, “which is a very sweeping mandate that requires Medicaid cover basically every medically necessary treatment or procedure that a young person might need.”

Tagert declined to speak to the Bulletin after the hearing.