FTC Workshop Suggests Federal and State Unfair Competition Enforcement Action Against Gender-Affirming Care

On June 25, 2025, the Federal Trade Commission (FTC) announced the agenda for its July 9, 2025 Workshop exploring the characterization of gender-affirming health care as involving consumer deception or unfair trade practices. Health care providers, plans, and related businesses should anticipate that investigations and lawsuits related to gender-affirming care will follow under federal unfair competition law and, perhaps first, under state unfair trade practices laws.

Trump Administration and FTC Action Against Gender-Affirming Care

The Trump administration, including leadership of the FTC, has prioritized using law enforcement tools against gender-affirming care, and, while the focus of these efforts has mainly been on the provision of such care to minors, their substance has laid groundwork for enforcement against gender-affirming care for adults. On January 28, 2025, Executive Order 14187 ordered the federal government to aim to limit gender-affirming care, defined broadly to include both surgical and hormonal treatments, for those under the age of 19, though a federal judge partially blocked that order after challenges by various civil rights organizations and state attorneys general. Despite the nationwide preliminary injunction, gender-affirming care has continued to be of significant focus to the federal government. Over the last few months, the U.S. Department of Health and Human Services has taken numerous actions to limit gender-affirming care for both minors and adults, including, for instance, by releasing a 409-page report regarding best practices for treating gender dysphoria in minors, issuing numerous letters to hospitals requesting information about gender-affirming care for minors, and finalizing regulations for marketplace plans that prohibit coverage of gender-affirming care for both minors and adults as an essential health benefit. Further, while it did not make it into the law signed by President Trump last week, the House-passed version of the One Big Beautiful Bill restricted the use of federal funds for gender-affirming care for all ages by both Medicaid and marketplace plans. Prior to the inauguration, it was reported that incoming FTC Chair Andrew Ferguson had proposed that the FTC “Fight Wokeness” by “[i]nvestigat[ing] the doctors, therapists, hospitals, and others” who have provided gender-affirming care to “children and adults” (emphasis added).

The July 9 FTC Workshop, which will feature extensive testimony by prominent opponents of gender-affirming care generally, appears designed to develop testimony and other evidence of “false or unsupported claims about ‘gender-affirming care’” and “harms consumers may be experiencing” as a result. The accompanying press release characterizes such testimony as coming from “[d]octors, medical ethicists, whistleblowers, detransitioners, and parents of detransitioners,” and is “grounded in research, expertise, and personal experience.”  As the FTC explains in related press releases, such “evidence that medical professionals or others omitted warnings about the risks or made false or unsupported claims about … benefits and effectiveness” could justify action under Section 5 of the FTC Act, which gives the FTC “broad authority to protect consumers from unfair or deceptive acts or practices.”

In view of the Administration’s and FTC’s priorities and the process of developing relationship that would justify action, providers and recipients of gender-affirming care should anticipate FTC and other federal investigations and actions regarding representations as to the benefits, effectiveness, and risks of gender-affirming care.

State Unfair and Deceptive Trade Practices Enforcement Will Likely Precede or Accompany Federal Action

Several state investigations and lawsuits are already underway regarding other legal claims against providers of gender-affirming care. Those lawsuits have primarily been third-party indemnification lawsuits or investigations through third-party subpoenas targeting standard-setting organizations and certain nonprofit organizations that support gender-affirming care, as several states seek to define state legislative bans or other state laws that limit access to gender affirming care.

State attorneys general have likewise led recent efforts to bring antitrust and unfair competition claims against “woke” practices such as diversity, equity and inclusion (DEI) policies and environmental, social and governance (ESG) policies. Though similar actions have occurred at the federal level, state enforcers have frequently acted first, brought claims more broadly, and blazed the trail for using such legal theories to oppose “woke” conduct. This likely results from the distinct political environments in which such state officials operate and their authority to enforce distinct state laws relating to unfair competition. Because such laws can vary in nuanced ways and the multitude of authorities and laws can result in separate investigations and proceedings in many jurisdictions, state unfair competition laws pose special challenges to compliance and defense efforts.

Notably, such state efforts have often taken advantage of evidence gathered and published using federal subpoena powers outside the context of case-specific enforcement. Just as notably, although state unfair competition laws vary, many such laws specifically provide that their agencies and courts apply those laws in light of FTC interpretations of Section 5 of the FTC Act, the very authority that the FTC has stated gender-affirming care may implicate. State attorneys general are thus likely to use the FTC’s proceedings as both factual and legal support for claims under state laws.

State attorneys general may also be able to rely on the wide swath of state laws prohibiting gender-affirming care. Kaiser Family Foundation reports that 27 states have laws in place limiting access by youth to gender-affirming care. The Supreme Court’s recent decision in United States v. Skrmetti to uphold a Tennessee law banning gender-affirming care, along with the Trump Administration’s shift in position on sex discrimination in the health care context, will embolden states to enhance state-level restrictions.

Businesses in the health care field should therefore anticipate that, perhaps even before similar federal action affects them, state attorneys general are likely to initiate investigations and legal proceedings relating to gender-affirming care under state unfair competition or unfair and deceptive trade practices laws.

Attorneys from Crowell’s State Attorney General, Antitrust & Competition, and Health Care Practices will continue to monitor developments and are ready to assist in this area.