The Attack on Gender Affirming Care: How Should Providers in Sanctuary States React?
Loyola University Chicago School of Law, JD 2024
The political debate surrounding Gender Affirming Care (GAC) is gaining momentum nationwide as 22 states have already enacted laws that restrict medical professionals from offering hormonal and/or surgical treatments to transgender minors. Despite endorsement and approval of this treatment by various medical organizations, such as the AMA, efforts to limit access for minors continues to press forward. Aside from the ongoing battle between politicians and medical providers, the constitutional implications of such legislation remain uncertain.
What does the current landscape look like?
Federal courts in Alabama, Arkansas, Florida, and Indiana have already granted preliminary injunctions to block prohibitive legislation; however, a federal consensus on the legislation’s constitutionality in the near future is unlikely. For the moment, health care professionals remain in limbo.
In light of the bans on care already enacted, especially in states where an injunction has not been granted, families of transgender children are finding themselves compelled to seek medical assistance from other states. This raises the question: What are the ramifications of such legislation on states that have thus far resisted limiting access to GAC?
Scope of gender affirming care bans.
These legislative bans are largely directed toward limiting the treatment of transgender minors with puberty blockers and cross-sex hormones. While the statutory language is similar across the board, the group of health care providers governed by the statutory language is inconsistent. This may expose out-of-state providers to liability for care administered to residents of states with legislative bans in place.
In early July of 2023 the Missouri Governor, Mike Parson, signed into law a bill banning health care professionals from providing gender affirming care to minors. The language of the legislation specifically defines a “health care provider” as “an individual who is licensed, certified, or otherwise authorized by the laws of this state [Missouri] to administer health care in the ordinary course of the practice of his or her profession.” This is an example of a state legislative ban that serves as a low liability risk to out-of-state providers as it does not include a provision for prohibiting out-of-state practitioners from providing GAC to Missouri residents. This statute effectively incorporates protective language for out-of-state providers in that it explicitly limits the prohibition to health care providers licensed in the state of Missouri.
Conversely, in February 2023 Mississippi enacted a ban that prohibits any person from not only providing gender transition procedures to minors but also prevents them from “engaging in conduct that aids or abets the performance or inducement of gender transition procedures to minors.” This statutory language exposes medical professionals in sanctuary states to significant liability for providing GAC to residents of Mississippi and states with similar statutory language.
How should healthcare administrators respond?
Gender Affirming Care is a means to provide individuals with the security and assistance they need as they go through an important period in their lives. Despite the action being taken by states to prohibit this care, providers in states without restrictions (or minimal restrictions) should not shy aware from assisting as they are able. Risk management, compliance, and legal departments should remain vigilant regarding state action, especially that of surrounding states, and must collaborate to ensure they are able to provide the proper guidelines for clinical staff to assist in the safest way possible for both the patients and the healthcare entity.
While debate on the constitutionality of this legislation remains ongoing, healthcare entities should operate under the assumption that state enacted bans will remain in place. However, entities must be prepared to modify guidelines and policies as new legislation is enacted and litigation is resolved. This is especially applicable to telehealth patients, where the treatment is deemed to occur in the state in which the patient is located.
The area of gender affirming healthcare remains in a constant state of flux and providers should be prepared to properly vet potential prospective patients and provide up to date guidelines to clinical staff to ensure that they remain in compliance with current legislation.
What happens next?
The Senate Judiciary Committee held a fact-finding hearing in June of 2023 in preparation for the coming vote on the Equality Act, but its impact on the provision of GAC remains unclear. Federal courts have remained consistent in halting bans on GAC; however, the legal and political battle is far from over. It is probable that any ultimate verdict in the presently pending cases will face appeals all the way to the highest levels of the judicial system, potentially prolonging the uncertainty for the next few years. As of the present moment, healthcare entities should remain vigilant in monitoring relevant state legislation and agency guidance. While uniform guidelines, whether legislative or otherwise, are likely to emerge in the future, today is not that day. In the interim, we must prepare for any ongoing journey ahead.