Under the ACA, insurance plans sold through the ACA marketplace are required to cover all EHBs as defined by the benchmarks of the state in which they operate. The rule, if enacted as proposed, would remove hormone replacement therapy, gender-affirming surgery, puberty blockers, and other forms of gender-affirming medical care from the list of valid EHBs. Insurers would still be allowed, but not required, to offer coverage for such care.

As justification for the new rule, CMS and HHS pointed to Trump’s executive orders calling for gender-affirming care to be banned for trans youth and demanding an “end to Federal funding of gender ideology.” But although it parrots Trump’s false definition of “biological sex” (that people are immutably male or female based on whether they have “the biological function to produce” sperm or eggs), the proposal claims that it is not subject to the injunctions blocking them, because it “does not rely on the enjoined sections” of those executive orders. Instead, the proposal further claims that gender-affirming care “is not typically included in employer-sponsored plans, and EHB must be equal in scope to a typical employer plan” — ergo, such care cannot be classed as an EHB.

In fact, it is not uncommon for employer-provided health plans in the U.S. to cover gender-affirming care, as KFF reported this week. Although coverage is uneven across the country, a 2024 KFF survey reported that about 24% of businesses with more than 200 employees cover gender-affirming care in their insurance policies. Among the country’s largest businesses — those that employ more than 5,000 people — 50% offered coverage for gender-affirming care in their largest plan.

Although the Trump administration has largely targeted trans people 19 years old and younger in its attacks on gender-affirming care, Republicans have signaled for at least a year that they would come for adult care soon after.

As we’ve reported previously, public comment can be an effective tool for voicing dissent: even if officials do adopt the rule, it will be challenged in court (Secretary of State Marco Rubio’s comments about dismantling certain courts notwithstanding), at which point lawyers will be able to draw on public comments as part of the official record to bolster their case.

At the time of writing, the proposal had received over 5,000 comments, many of them opposing the ban on gender-affirming care. The comment period will end on April 11.

Make public comment here: https://www.regulations.gov/document/CMS-2025-0020-0011/comment