Gender-Affirming Care Continues to Occupy—and Divide—State Lawmakers

The political divide on “gender-affirming care” has contributed to a patchwork of state laws in recent years that has made the issue a challenging one for compliance officers in the health care sector. That state of affairs is set to continue in 2024.

Red-State Bans and Blue-State Shield Laws

In the past few years the legislative trend associated with gender-affirming care that has drawn the most media attention is the passage, mostly in Republican-governed states, of laws banning such care for minors. The bans typically cover the prescription of puberty blockers and hormones, as well as the performance of gender transition surgeries, on minors up to the age of 18. As of September 2023, 22 states had enacted such bans. A handful of those laws make the provision of such care a felony.

The American Medical Association has strongly opposed the bans, calling them a “dangerous intrusion of government into the practice of medicine and the criminalization of health care decision-making,” and referring to gender-affirming care as “medically-necessary, evidence-based care that improves the physical and mental health of transgender and gender-diverse people.”

Democrat-led states have responded to the bans by enacting “shield” or “refuge” laws. The laws vary from state to state, but they are generally aimed at protecting access to gender-affirming care by shielding in-state providers and out-of-state recipients of that care from prosecution by states with bans in effect. More than a dozen states have passed such laws.

Gender-Affirming Care Divides States

As of mid-January, there were over 160 measures related to gender-affirming care pending in 30 states, according to the LexisNexis State Net legislative tracking system. Measures in 12 of those states would ban or otherwise oppose such care, measures in 10 states would protect access to or support such care, while in eight states there were measures pending that would do both.

Partisan Divide Continues in 2024

As of Jan. 19, there were over 160 bills related to gender-affirming care pending in 30 states, including carryovers as well as new introductions and prefiles, according to the LexisNexis® State Net® legislative tracking system.

Measures introduced by Democrats include: 

• New Jersey AB 1710 and SB 1628, both of which seek to establish protections for people “providing, receiving, or allowing children to receive gender-affirming health care.” 

• Virginia SB 278, which would affirm that all people in the Old Dominion State “are entitled to provide, receive, and help others provide or receive abortion care and gender-affirming health care services not prohibited under the laws of the Commonwealth.” 

• Vermont HB 654, which would affirm that the Green Mountain State does not recognize the laws of other states allowing the removal of children because their parent or parents permitted them to receive gender-affirming care. 

About a dozen bills relating to gender-affirming care are pending in New York, all introduced by Democrats, including: 

• SB 8058, which would define gender-affirming care in Empire State law once and for all, so there are fewer legal questions going forward. 

• SB 7879, which would direct the state’s Commissioner of Health to establish rules for electronic health record systems to segregate information about a patient’s gender-affirming care and other sensitive matters from the rest of the patient’s medical record. 

• Companion measures AB 1936 and SB 4287, which would prohibit state contracts with businesses that do not provide health insurance that covers gender-affirming care. 

• Companion measures AB 6269 and SB 5636, which would exempt the provision of gender-affirming care from professional misconduct charges. 

• Companion measures AB 6660 and SB 7053, which would affirm that providing gender-affirming care to a child does not constitute mistreatment or abuse. 

• AB 6664, which would mandate equal rights for transgender people under the laws of the state. 

• SB 2860, which would establish the Gender Identity Respect, Dignity and Safety Act, regulating the treatment of incarcerated people based upon their gender identity. 

• SB 6637, which would provide a tax credit for people relocating to New York to provide or receive gender-affirming care.

Finally, in GOP-controlled Florida, a pair of bills introduced by Democrats would make gender-affirming care reimbursable by Medicaid (HB 1283) and repeal prohibitions on the use of state funds for gender-affirming care (SB 1404).

As in New York, there are about a dozen transgender care bills pending in Missouri. But with most of these measures having been introduced by Republicans, their objectives are decidedly different from the New York bills: 

• HB 1519, which would prohibit discrimination against health care providers who refuse to assist in gender-affirming care. 

• HB 1520, which would prohibit health care providers from performing gender transition surgeries on those under 18 years old. 

• HB 2263, HB 2296 and SB 1209, all of which would prohibit certain mental health providers from engaging minors in conversion therapy. 

• SB 726, SB 776 and SB 1185, all of which would remove the August 28, 2027 expiration date for the prohibition on prescribing cross-sex hormones or puberty blockers to those under the age of 18. 

• SB 728, which would prohibit school district officials from encouraging a student under 18 years old to adopt a gender identity or sexual orientation.

Other pending Republican-sponsored measures include Illinois HB 4355, which would require healthcare professionals to report to the state Department of Public Health each time they prescribe a puberty blocker to someone under 18 years old, and New Hampshire HB 1664, which would establish a standard cause of action to recover damages for injuries caused by gender transition surgery.

Tricky Compliance Issue

The calendar may be widening the partisan divide on gender-affirming care this year.

“In an election year, it’s more political than health-related, sadly,” said attorney Rodney Miller of the Practical Guidance team for LexisNexis, adding, “There doesn’t seem to be much science behind what certain states are doing.”

Miller clarified he wasn’t taking sides in the political debate over gender-affirming care, but he did say the issue ultimately boils down to “denying health coverage to a certain segment of the population.”

And that can be a tricky matter for compliance personnel, especially for those who work for organizations that operate in more than one state, as states are obviously taking dramatically different approaches to this issue, depending on whether they’re red or blue.

“From a compliance perspective, it becomes a concern” for large health care systems that cross state boundaries, Miller said.

Given the politics of this issue, you can expect gender-affirming care to remain a hot topic in statehouses for quite some time, most likely long past the November election. We’ll be adding it to our long list of legislative topics we regularly monitor, so don’t be surprised if we revisit it again soon.

—By SNCJ Correspondent BRIAN JOSEPH

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