Posted in Health Care

Gender-Affirming Health Care: Provider Considerations

   Published Date: November 1, 2023

The federal government has taken steps to protect access to health care for LGBTQ+ people and prohibit discrimination on the basis of gender identity, and several states have enacted protections for access to gender-affirming health care services. At the same time, however, there are numerous states that have enacted bans on gender-affirming health care services, presenting various challenges for health care providers of these services as they try to navigate this constantly changing legal landscape.

This article explains the key issues that health care providers (including physicians, hospitals, clinics, pharmacies, non-physician practitioners, mental health practitioners, and pharmacists) should understand under the relevant federal and state laws as they provide gender-affirming health care services and gender dysphoria treatments (including puberty-delaying medication, hormone therapy, mastectomy, mammaplasty, vaginoplasty, and vocal therapy).

(For a customizable, state-by-state comparison chart on gender-affirming care laws and regulations, legal challenges, and provider protections and penalties, see State Gender-Affirming Care Laws on Practical Law.)

Although federal law and regulations do not explicitly protect gender-affirming care, the federal government has taken steps to protect access to gender-affirming health care services and prevent discrimination on the basis of gender identity, including issuing guidance directing federal agencies to take certain actions.

For example, on January 20, 2021, President Biden issued an executive order directing federal agencies to review existing regulations and policies to prevent and combat discrimination based on gender identity and sexual orientation (Exec. Order No. 13,988, 86 Fed. Reg. 7023 (Jan. 20, 2021)).

Additionally, the White House issued a Fact Sheet on March 31, 2022, summarizing the administration’s actions taken to protect access to gender-affirming health care services and prevent discrimination on the basis of gender identity (The White House: Fact Sheet: Biden-⁠Harris Administration Advances Equality and Visibility for Transgender Americans (Mar. 31, 2022)).

Federal agencies have also taken steps to prohibit discrimination on the basis of gender identity and protect access to gender-affirming health care. For example:

  • The Department of Defense (DOD):
  • The Department of Justice (DOJ) sent a letter to state attorneys general reminding them of constitutional and statutory obligations to ensure that transgender youth are not subjected to unlawful discrimination based on their gender identity, including when seeking gender-affirming care (Letter from Kristen Clarke, Assistant Attorney General, Civil Rights Division, DOJ, to State Attorneys General (Mar. 31, 2022)).

Section 1557 of the Affordable Care Act (ACA) imposes a nondiscrimination requirement that prohibits individuals from being excluded from participation in, being denied the benefits of, or being subject to discrimination under a health program or activity that receives federal financial assistance on specified grounds (42 U.S.C. § 18116; for more on the ACA, see Affordable Care Act (ACA) Overview on Practical Law).

Section 1557 incorporates the grounds for discrimination that are prohibited under:

  • Title VI of the Civil Rights Act of 1964 (Title VI) (prohibiting discrimination based on race, color, or national origin) (42 U.S.C. § 2000d to 2000d-7).
  • Title IX of the Education Amendments of 1972 (Title IX) (prohibiting discrimination based on sex) (20 U.S.C. § 1681 to 1688).
  • The Age Discrimination Act of 1975 (Age Act) (prohibiting discrimination based on age) (42 U.S.C. § 6101 to 6107 and final regulations (82 Fed. Reg. 47107 (Oct. 11, 2017))).
  • Section 504 of the Rehabilitation Act of 1973 (prohibiting discrimination based on disability) (29 U.S.C. § 794).

Together, these provisions prohibit discrimination based on race, color, national origin, sex, age, or disability (45 C.F.R. § 92.1).

Three successive presidential administrations have issued significant implementing regulations regarding Section 1557. These implementing regulations include:

The Section 1557 nondiscrimination rules were intended to address discrimination involving transgender individuals. In 2021 and 2022, the Department of Health and Human Services (HHS) issued a notification and guidance consistent with this position. However, a Texas district court set aside the notification and vacated the guidance, as discussed further below (see Federal Litigation below).

Specifically, HHS issued a notification in May 2021 that it intended to interpret and enforce Section 1557’s prohibition on discrimination on the basis of sex to include discrimination on the basis of gender identity and sexual orientation. HHS indicated that:

In March 2022, HHS’s Office of Civil Rights (OCR) issued guidance stating that:

  • Restricting an individual’s ability to receive (or limiting a health provider’s ability to provide) gender-affirming care based on an individual’s sex assigned at birth or gender identity likely violates Section 1557.
  • Gender dysphoria may qualify as a disability under the Americans with Disabilities Act (ADA), as amended.
  • Preventing qualified individuals from receiving gender-affirming care based on their gender dysphoria, gender dysphoria diagnosis, or perceived gender dysphoria may violate Section 504 of the Rehabilitation Act of 1973 and Title II of the ADA. (HHS: Notice and Guidance on Gender-Affirming Care, Civil Rights, and Patient Privacy (Mar. 2, 2022) (March 2022 Guidance).)

In interpreting ACA Section 1557, the March 2022 Guidance:

  • Indicated that a categorical refusal to provide treatment to individuals based on their gender identity is prohibited discrimination.
  • Viewed Section 1557 as prohibiting federally funded entities from limiting individuals’ ability to obtain medically necessary care (including gender-affirming care) from a provider “solely on the basis of their sex assigned at birth or gender identity.”

There have been numerous cases addressing whether gender dysphoria or access to gender-affirming care is protected by civil rights laws prohibiting discrimination. Section 1557, in general and specifically around gender identity, has been the topic of significant and ongoing litigation.

For example, in 2022, the US District Court for the Northern District of Texas:

  • Set aside HHS’s May 2021 Notification. In doing so, the court concluded that Section 1557 does not prohibit discrimination based on sexual orientation or gender identity. The court also granted the plaintiffs’ request for a declaration that Section 1557 does not prohibit discrimination on account of sexual orientation or gender identity. (Neese v. Becerra, 640 F. Supp. 3d 668, 675, 684, 686-87 (N.D. Tex. 2022), appeal docketed, No. 23-10078 (5th Cir. Jan. 25, 2023).)
  • Vacated HHS’s March 2022 Guidance. Texas sued HHS seeking to have the March 2022 Guidance declared unlawful and vacated, and the court vacated the guidance on the grounds that it was arbitrary and capricious and violated the Administrative Procedure Act (see Texas v. EEOC, 633 F. Supp. 3d 824, 838-41 (N.D. Tex. 2022)).

By contrast, a Maryland district court recently held that a university health system and its hospital subsidiary violated Section 1557 by refusing to allow a patient’s hysterectomy to be performed at the hospital because it was for a gender transition. The court concluded that the hospital discriminated on the basis of sex because it allowed patients to obtain medically necessary hysterectomies unless they were for treating gender dysphoria. (Hammons v. Univ. of Md. Med. Sys. Corp., 2023 WL 121741, at *5-10 (D. Md. Jan. 6, 2023), appeal docketed, No. 23-1452 (4th Cir. Apr. 26, 2023).)

(For more on the Texas and Maryland district court cases, see June 2020 Final Regulations Under ACA Section 1557: Nondiscrimination in Health Programs and Activities on Practical Law.)

There have been numerous cases addressing whether gender dysphoria or access to gender-affirming care is protected by civil rights laws prohibiting discrimination.

Additionally, there have been legal challenges regarding whether gender dysphoria is protected as a disability. In a case of first impression, the Fourth Circuit found that gender dysphoria does not fall within the ADA’s exclusion from protection for “gender identity disorders not resulting from physical impairments” (42 U.S.C. § 12211(b)(1)). The court held that gender dysphoria is protected as a disability under the ADA and that an individual diagnosed with gender dysphoria may bring a disability discrimination claim. (Williams v. Kincaid, 45 F.4th 759, 769, 773-74 (4th Cir. 2022).)

HHS has taken action to safeguard the protected health information (PHI) of people receiving gender-affirming care.

The March 2022 Guidance (which addressed patient privacy related to gender-affirming care under the Health Insurance Portability and Accountability Act (HIPAA)) reminded HIPAA-covered entities (including providers) and business associates that HIPAA permits, but does not require, disclosure of PHI if the disclosure:

  • Is required by another law.
  • Complies with the other law’s requirements.
  • Is limited to relevant information.

However, the Northern District of Texas vacated the March 2022 Guidance (see Federal Litigation above).

In April 2023, HHS proposed regulations addressing reproductive health care under HIPAA that would amend the HIPAA Privacy Rule To Support Reproductive Health Care Privacy (88 Fed. Reg. 23,506 (Apr. 17, 2023)). The proposed regulations add a definition of “reproductive health care” and define the term to include care, services, or supplies related to an individual’s reproductive health. HHS intends for the term to be interpreted broadly and be inclusive of all types of health care related to an individual’s reproductive system. The proposed regulations also provide that HHS would interpret reproductive health care to include contraceptives (including emergency contraceptives), pregnancy-related health care, fertility or infertility-related health care, and other care, services, or supplies for diagnosing and treating conditions related to the reproductive system (which includes health care related to reproductive organs, regardless of whether the health care is related to an individual’s pregnancy or whether the individual is of reproductive age). (88 Fed. Reg. at 23,527.)

Additionally, the proposed regulations would amend the Privacy Rule to add new categories of prohibited uses and disclosures regarding reproductive health care. Specifically, the proposed regulations would prohibit entities from using or disclosing an individual’s PHI to conduct a criminal, civil, or administrative investigation into (or proceeding against) an individual, other persons, or health provider in connection with seeking, obtaining, providing, or facilitating reproductive health care that is:

  • Provided outside the state where the investigation or proceeding is authorized and the health care is lawful in the state in which it was provided.
  • Protected, required, or authorized by federal law (for example, the Emergency Medical Treatment and Labor Act), regardless of the state in which the health care was provided.
  • Provided in the state in which the investigation or proceeding is authorized and is permitted by the law of that state. (88 Fed. Reg. at 23,528.)

According to HHS, the states lack any substantial interest in seeking the disclosure of PHI in these three situations.

While the proposed regulations do not specifically mention gender-affirming care, Mississippi’s attorney general (along with 18 other states attorneys general) submitted comments opposing the proposed rule, stating that it exceeds HHS’s statutory authority and that any attempt to use the proposed definition of reproductive health care to apply to gender-affirming care would be unlawful (Letter from Lynn Fitch, Mississippi Attorney General, to Xavier Becerra, Secretary of Health and Human Services (June 16, 2023)).

Each state determines the legality and conditions of gender-affirming care. Providers must be aware of the laws regarding gender-affirming care services in the states where:

  • They practice.
  • Their patients live.
  • They provide care.

Before performing gender-affirming care, providers should consider state laws that:

  • Criminalize gender-affirming care, including:
    • which services can be prosecuted (for example, surgeries, drugs, or hormone treatments);
    • the minimum age that a person may obtain gender-affirming care;
    • what acts can be prosecuted (for example, performing or aiding and abetting gender-affirming care); and
    • if there are situations or cases that are not included in the ban.
  • Create civil liabilities for providers of gender-affirming care.
  • Impose licensing disciplinary actions or fines for performing gender-affirming care.
  • Impact malpractice insurance coverage for performing gender-affirming care.

Many state requirements have changed rapidly following the enactment of new state laws that:

  • Limit access to gender-affirming care (especially for minors) and create penalties for providers and others that may assist with gender-affirming care.
  • Protect parties against possible out-of-state investigations if they participate in gender-affirming care that is lawful in the state where the care is provided but unlawful in another state.

Some of these laws are being challenged in state or federal courts.

Many states have enacted laws relating to access to gender-affirming care. Most of the laws that restrict access to gender-affirming care affect minors’ access to gender-affirming drugs, hormones, and surgeries (see Minors below). Some states have enacted additional requirements for the provision of gender-affirming care to adults. For example, Florida, in addition to banning gender-affirming drugs, hormones, or medical procedures for individuals younger than 18 years old (with exceptions), requires physicians to obtain written informed consent from patients 18 years and older receiving gender-affirming drugs, hormones, or medical procedures (§ 456.52, Fla. Stat).

Providers must stay updated on all federal and state requirements (especially as there are continuing rapid changes and ongoing legal challenges) and implement compliant changes to their practices, policies, and procedures.

By contrast, some states have enacted laws and other provisions providing protections and rights to individuals obtaining gender-affirming care. For example:

  • Massachusetts enacted a law stating that access to gender-affirming care is a constitutional right (M.G.L. c. 12, § 11I½(b)).
  • New Mexico enacted a law prohibiting the use of a legal action in another state to deter, prevent, sanction, or penalize an individual or entity for engaging in a protected health care activity. A protected health care activity is seeking, providing, or receiving (or assisting in seeking, providing, or receiving) reproductive or gender-affirming health care. (NMSA 1978, §§ 24-35-2 and 24-35-5.)
  • Vermont enacted a law stating that access to gender-affirming care is a legal right in the state (12 V.S.A. § 7302).

Most states that restrict gender-affirming care limit the restrictions to individuals under a specific age. For example:

  • Alabama prohibits a health care practitioner from providing gender-affirming drugs, hormones, and surgeries to individuals younger than 19 years old (Ala. Code §§ 26-26-4, 26-26-3 and 43-8-1(18)).
  • Effective January 1, 2024, Idaho prohibits a health care practitioner from providing gender-affirming puberty blockers, hormone therapies, and transition-related surgeries to individuals younger than 18 years old (H.B. 71, Idaho 67th Leg. First Reg. Sess. (Apr. 4, 2023); Idaho Code §§ 18-1506C and 19-5307).
  • Iowa prohibits a health care practitioner from knowingly providing or aiding in providing gender-affirming related drug, hormone, or surgical treatments for individuals younger than 18 years old (S.F. 538, Iowa 90th Gen. Assemb. 2023 Reg. Sess. (Mar. 22, 2023); Iowa Code Ann. § 147.164).

Exceptions to these restrictions generally include, but are not limited to:

Other states have enacted laws providing protections and rights to minors obtaining gender-affirming care. For example:

  • California provides protections for individuals younger than 18 years old who are obtaining or wishing to obtain gender-affirming care in California (Cal. Civ. Code § 56.109; Cal. Civ. Proc. Code §§ 2029.300(e) and 2029.305(b), (c); Cal. Fam. Code §§ 3421(d), 3424(a), 3427(f), 3428(d), and 3453.5; Cal. Penal Code §§ 819 and 1326(c)).
  • Maine allows minors at least 16 years old to consent to gender-affirming hormone therapy and follow-up care without parental consent (H.P. 340/L.D. 535, Me. 131st Leg. First Spec. Sess. (July 11, 2023); 22 M.R.S.A. § 1508).

Some states have enacted laws defining sex and similar terms as the individual’s sex that was assigned at birth. These include:

  • Kansas, which defines sex as “such individual’s biological sex, either male or female, at birth” (S.B. 180, Kan. 2023 Sess. (Apr. 27, 2023)).
  • Montana, which defines sex as being determined by the biological and genetic indication of male or female at birth, “without regard to an individual’s psychological, behavioral, social, chosen, or subjective experience of gender” (S.B. 458, Mont. 2023 Leg. (May 19, 2023); Mont. Code Ann. § 1-1-201).
  • North Dakota, which defines sex as “the biological state of being male or female, based on the individual’s non-ambiguous sex organs, chromosomes, or endogenous hormone profiles at birth” (N.D.C.C. §§ 1-01-49(18), 12.1-36.1-01(3), 15-10.6-01(2), 15.1-41-01(2), and 23-02.1-25.1(3)).
  • Tennessee, which defines sex as “a person’s immutable biological sex as determined by anatomy and genetics existing at the time of birth” (T.C.A. §§ 1-3-105(c) and 49-2-802(4)).

All providers should be aware of the possible penalties and licensing effects as determined by each state, as well as the implications for providing gender-affirming care services to patients from states where the services are restricted.

Some states have now criminalized the provision of gender-affirming care services depending on the patient’s age and type of service. Providers may face felonies or misdemeanors, in addition to fines and other penalties, for providing or aiding and abetting another health care practitioner in providing gender-affirming care. For example, in:

  • Alabama, a person engaging in or causing certain gender-affirming procedures to be performed on an individual younger than 19 years old faces Class C felony charges (Ala. Code §§ 26-26-4, 26-26-3 and 43-8-1(18)).
  • Georgia, a health care practitioner or physician providing gender-affirming related drug, hormone, or surgical treatments for individuals younger than 18 years old may face administrative penalties, including revocation of the practitioner’s or physician’s permit or license (O.C.G.A. §§ 31-7-3.5 and 43-34-15).
  • Idaho, effective January 1, 2024, a health care practitioner providing gender-affirming puberty blockers, hormone therapies, or transition-related surgeries to an individual younger than 18 years old may face:
  • Tennessee, a health care practitioner performing gender-affirming surgical procedures or administering, prescribing, or dispensing a gender-affirming drug or device to an individual younger than 18 years old may face:
    • licensing sanctions;
    • a civil action by the individual, their parents, or their next of kin; and
    • a civil action by the Tennessee Attorney General, which may result in disgorgement of profits from the medical procedure and a civil fine of $25,000 per violation (T.C.A. §§ 68-33-105 to 68-33-107).
  • Texas, a health care practitioner providing gender-affirming drugs, hormones, and surgeries to an individual younger than 18 years old may face:
    • disciplinary action for unprofessional conduct, including license revocation (Tex. Health & Safety Code Ann. §§ 164.052(a)(34) and 164.0552);
    • a civil action by the Texas Attorney General’s Office (Tex. Health & Safety Code Ann. § 161.706); and
    • a potential child abuse investigation (Texas Office of the Attorney General Opinion No. KP-0401 (Feb. 18, 2022); but see In re Abbott, 645 S.W.3d 276, 281 (Tex. 2022) (noting that the attorney general opinion is not binding) and PFLAG, Inc. v. Abbott, 2022 WL 3040297, at *2 (Tex. Dist. Ct. Sept. 16, 2022) (enjoining the implementation of the attorney general opinion regarding Texas members of PFLAG, an organization that provides advocacy for LGBTQ+ people)).
  • Oklahoma, a health care practitioner knowingly providing gender-affirming drug, hormone, or surgical procedures and treatments for individuals younger than 18 years old may face:
    • disciplinary action for unprofessional conduct (Okla. Stat. tit. 59, §§ 509, 519.12, 567.8, and 637; Okla. Admin. Code § 435:15-5-11);
    • felony charges;
    • a civil action by the parent, legal guardian, or next friend of the minor for compensatory and punitive damages, injunctive and other appropriate relief, court costs, and attorneys’ fees;
    • a civil action by the minor obtaining drug, hormone, or surgical procedures or treatments for compensatory and punitive damages, injunctive and other appropriate relief, court costs, and attorneys’ fees; and
    • an action from the Office of the Oklahoma Attorney General (Okla. Stat. tit. 63, § 2607.1).

Providers that have licenses in multiple states should consider whether any of those states criminalize providers or other individuals assisting a patient in obtaining gender-affirming care in a state where providing gender-affirming care is legal. For example, Indiana prohibits health care practitioners from knowingly providing gender-affirming related medical or surgical services to individuals younger than 18 years old and from aiding or abetting another health care practitioner in providing gender transition procedures (Ind. Code 25-1-22-1 to 25-1-22-18).

If a provider is licensed in a state that restricts gender-affirming care, the licensing agency in that state may investigate and pursue disciplinary charges against the provider for providing gender-affirming care in another state in which the provider is licensed but where gender-affirming care is legal. The investigation may also spread to other states where the provider is licensed given that certain state licensing laws allow or require a state licensing agency to automatically initiate disciplinary proceedings if there is a disciplinary action taken against the provider by another state licensing agency. These licensing actions may then have an effect on a provider’s Medicare or Medicaid enrollment.

Additionally, states where gender-affirming care is restricted may try to enact legislation that provides for penalties or licensing repercussions against providers assisting a patient in obtaining access to gender-affirming care in another state. Some states seem to be considering enacting this type of legislation, though these laws will likely face legal challenges. (For more on state physician licensing requirements, see Physician Licensing Requirements Chart on Practical Law.)

Notably, providers may also find that their malpractice insurance does not cover certain gender-affirming services in states that restrict the provision of gender-affirming care.

Some states have taken steps to protect providers of gender-affirming care services. For example, in:

  • California:
    • state courts and attorneys cannot honor subpoenas based on a violation of another state’s laws that interfere with a person’s right to allow a child to receive gender-affirming care (Cal Civ. Proc. Code §§ 2029.300 and 2029.350); and
    • law enforcement agencies cannot knowingly make or participate in the arrest or extradition of an individual under an out-of-state arrest warrant based on another state’s law against providing, receiving, or allowing a child to receive gender-affirming care (including mental health care) in California (Cal. Penal Code § 819).
  • Maryland:
    • state agencies must take whatever actions necessary to the fullest extent within their authority to protect individuals and entities in Maryland that are involved in gender-affirming care; and
    • state health care practitioner licensing boards cannot take adverse action against an individual because they participated in gender-affirming care that is authorized in Maryland (Md. Exec. Order No. 01.01.2023.08 (June 5, 2023)).
  • Massachusetts, a party cannot deter, prevent, sanction, or punish a person engaging in legally protected health care activity by filing or prosecuting an action outside Massachusetts where liability is based on legally protected health care activity in Massachusetts, or attempt to enforce an out-of-state order or judgment where liability is based on legally protected health care activity in Massachusetts. Legally protected health care activity is a person’s exercise, enjoyment, aiding, or encouragement of (or the attempt to exercise, enjoy, aid, or encourage) rights to reproductive health care services or gender-affirming health care services that is legal in Massachusetts. (M.G.L. c. 12, § 11i 1/2(a).)
  • Oregon:
    • malpractice insurers cannot take adverse action against a health care practitioner for participating in gender-affirming care services;
    • health care practitioners may participate in the state’s Address Confidentiality Program, which protects the confidentiality of health care providers’ addresses (Or. Rev. Stat. §§ 192.820, 192.822, and 192.826); and
    • Oregon courts cannot issue a subpoena relating to gender-affirming care services that are lawful in Oregon but unlawful in another jurisdiction (H.B. 2002, Or. 82nd Leg. Assemb. 2023 Reg. Sess. (July 13, 2023)).
  • Washington, protections are provided for health care practitioners, their affiliates, and their families who provide, assist, or attempt to provide or assist, gender-affirming care that is lawful in Washington (RCW 7.115.010 to 7.115.901).

Providers must be licensed in the state where the patient is located when providing telehealth services. During the COVID-19 pandemic, many states temporarily lifted restrictions or expanded where providers may be located to provide telehealth services in the state. As state waivers expired, many providers have expanded where they are licensed to continue to provide telehealth in states where they have patients but where they are not located.

Providers should be aware of the laws in the state where they provide care that address whether:

  • It is legal to provide gender-affirming care.
  • Non-physician practitioners can provide gender-affirming care.

Additionally, because gender-affirming care can be prescribed by telehealth, providers must consider:

  • The location of the patient, as the state law where the patient is located governs.
  • Whether the state where they are licensed has applicable requirements or prohibitions on out-of-state providers writing prescriptions.

(For more on telehealth services and considerations, see Telehealth: Overview and State Telehealth Requirements for Private Payors Chart on Practical Law.)

Health care providers must understand how the current legal environment affects the care they can provide to their patients, including the disparate effects that state bans or protections are likely to have on their practices. Providers should consider:

  • What gender-affirming care services they can provide and to which patients.
  • What advice and counseling they can offer to patients.
  • How to manage potential increases in out-of-state patients.
  • How to provide follow-up care for mismanaged care.

Providers must stay updated on all federal and state requirements (especially as there are continuing rapid changes and ongoing legal challenges to existing requirements) and implement compliant changes to their practices, policies, and procedures. Providers must also anticipate changes in their relationship with patients and how they can provide gender-affirming care.

Counsel for health care providers should evaluate the risk for providers located in states with and without bans and have a patient in a state with a ban. These providers may need to take certain actions, including:

  • Informing the patient about options to access gender-affirming care.
  • Providing logistical support or financial assistance to the patient to travel out of state for that care.
  • Providing in-person or telehealth clinical services (before or after) a patient travels out of state for that care.

Author: Health Watch Minute

Health Watch Minute Provides the latest health information, from around the globe.