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  4. Attacks on Gender-Affirming and Transgender Health Care

Attacks on Gender-Affirming and Transgender Health Care

    Published: May 3, 2022

    In 2021, Arkansas became the first state in the country to ban gender-affirming health care for transgender minors. Since then, Tennessee, Arizona, and Alabama have also enacted laws restricting access to gender-affirming care, and 11 other states are considering such bans as of March 2022. Alabama's ban included the harshest penalties of any legislation passed thus far, making the provision of gender-affirming care a felony punishable by up to 10 years in prison. Though legal challenges have so far kept these laws on hold, these health care bans are part of an increasing trend of anti-LGBTQ+ legislation proliferating at the state level, with a record of nearly 240 anti-LGBTQ+ bills already introduced this year.

    The Office of Population Affairs at the U.S. Department of Health and Human Services (HHS) defines gender affirming care as “an array of services that may include medical, surgical, mental health, and non-medical services for transgender and nonbinary people. For transgender and nonbinary children and adolescents, early gender-affirming care is crucial to overall health and well-being as it allows the child or adolescent to focus on social transitions and can increase their confidence while navigating the healthcare system.” Gender-affirming care is evidence-based medicine supported by many prestigious medical organizations, and study after study shows that gender-affirming care reduces depression and suicide among transgender youth. ACP and other leading medical organizations have condemned efforts to criminalize gender-affirming care and any care that interferes with the physician-patient relationship.

    While restrictions have primarily focused on preventing minors from accessing gender-affirming care, some have also targeted transgender health care for older individuals. In four states, these laws extend bans to adults – applying to those under the age of 19 in Alabama, those under the age of 21 in North Carolina and Oklahoma, and those under 25 in Missouri. Additionally, Arkansas’ law has banned insurance coverage of gender-affirming care overall for both public and private insurance plans, as would about half the bills being considered by other states.

    The Williams Institute at the UCLA School of Law found that over 58,000 transgender youth and young adults are at risk of losing access to care in states that have restricted access to gender-affirming care or are considering doing so. Beyond immediate impacts, these laws drive stigma and endanger the wellbeing of LGBTQ+ youth. According to the Trevor Project’s 2021 National Survey on LGBTQ Youth Mental Health, 94 percent of LGBTQ+ youth reported that recent politics have negatively impacted their mental health.

    Most gender-affirming care restrictions either criminalize physicians – sometimes with extreme penalties, such as the bill passed by Idaho’s House of Representatives carrying up to a life sentence for those who provide a minor with gender-affirming care – or make them subject to civil penalties or professional discipline through state licensing boards. Bills in multiple states (Alabama, Idaho, Kansas, North Carolina, Oklahoma, South Carolina, and Tennessee) would also establish penalties for parents who facilitate their children’s access to gender-affirming care, including by designating this health care as abuse.

    While Texas bills to ban gender-affirming care for transgender minors have not passed, the state has used administrative means to restrict access. After Texas Attorney General Ken Paxton issued an opinion describing gender-affirming care as child abuse, Governor Greg Abbott instructed the Texas Department of Family and Protective Services to investigate families with transgender children. This directive, which is currently blocked by a Texas appeals court, would have also imposed criminal penalties on physicians and other licensed professionals who did not report families who provide gender-affirming care to their children.

    Florida has also moved to restrict gender-affirming care administratively. The state’s Surgeon General released a memo contradicting HHS guidance on gender-affirming care for minors and setting “guidelines” prohibiting gender-affirming care, going as far to say that even social gender transition – such as a change in haircut or name – “should not be a treatment option.” 

    While most of the nearly 240 anti-LGBTQ+ bills introduced so far this year propose restrictions on the lives of transgender children in medical and educational settings, they are part of a growing wave of anti-LGBTQ+ legislation overall. Notable in this trend have been efforts to limit school employees from discussing gender identity, sexual orientation, and race – such as Florida’s recently passed “Don’t Say Gay” law – and to ban libraries from carrying books related to those topics.

    Anti-LBQTQ State Bills Chart

    As a result of these initiatives that challenge or deny access to critical health care, criminalize parents, and threaten the removal of children from their homes, some families with the means to do so have fled their states for other jurisdictions. Removing a child from loving parents solely for providing evidence-based and oftentimes life-affirming care is wrong. Alarmingly, these laws have also fueled misinformation that has led to increasing harassment and violence against physicians and other health care workers who provide gender-affirming health care services.

    ACP has decried these discriminatory policies against LGBTQ+ people and objected in particular to the interference with the physician-patient relationship and penalization of evidence-based care. ACP believes that physicians and other health care professionals should not fear criminal punishment for providing the medical standard of care, nor should the government attempt to force disclosure of patient information related to gender-affirming care. ACP policy also calls for coverage of comprehensive transgender health care in private and public insurance plans, which about half of these bills would ban. In addition to speaking out against these harmful laws, ACP has joined amicus briefs in legal challenges to the Texas directive and other policies discriminating against transgender people and will continue to support legal and legislative efforts protecting against these medically unsound and dangerous restrictions.

    Federal Actions to Address Discrimination against Transgender People

    The Biden Administration has taken multiple actions to address this legislative trend. On March 2, 2022, HHS clarified that physicians and other health care personnel are not required to disclose patient information regarding gender-affirming care and that denials of care based on gender identity are illegal. On March 31, the U.S. Department of Justice wrote to state attorneys general warning that bans on gender-affirming care are unconstitutional and violate multiple federal laws. HHS has also called for physicians and patients who believe they have been discriminated against on the basis of gender identity or disability in seeking to access gender-affirming care to file a complaint with the department’s Office of Civil Rights.

    HHS also proposed a new rule in December 2021 banning health coverage-related discrimination based on gender identity or sexual orientation. While the new rule has not been finalized, ACP has expressed support.

    State Actions to Support Gender-Affirming Care

    In response to these bans, at least eight states have introduced legislation this year to prevent discrimination against transgender people in health care or otherwise protect access to gender- affirming care.

    • The Hawaii’s legislature passed a bill requiring insurers to cover gender-affirming care services if they also cover those treatments for purposes other than gender transition and to provide clear information about coverage of gender-affirming care.
    • A Georgia bill would prohibit public insurance plans from discriminating on the basis of gender identity, including through denial of gender-affirming hormone therapy, and would repeal conflicting laws.
    • A bill in Vermont would allow minors to consent to non-surgical gender-affirming care.
    • A Maryland bill would ensure Medicaid coverage of comprehensive transgender health care.
    • Washington state proposed legislation addressing the need to ensure access to gender- affirming care and other forms of health care in mergers, acquisitions, and contracting affiliations.
    • California, Minnesota, and New York have responded to efforts in Texas and other states that designate gender-affirming care as abuse by introducing legislation that would block officials in their states from complying with out-of-state laws or judgments penalizing parents for providing gender-affirming care.

     

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