Legislation Impacting Transgender Clients and Communities

Lawmakers in numerous states in 2023 have passed or are considering legislation that aims to ban or restrict access to gender-affirming health care for transgender youth, prompting legal challenges from LGBTQ+ rights groups that are opposing these bills.

At least 19 states—Alabama, Arkansas, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Mississippi, Missouri, Montana, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia—have passed laws or policies that restrict gender-affirming care. The vast majority of bans target people under the age of legal majority, which for most of the United States is the age of 18. At least three of these states are targeting people up to the ages of 21 and 26. Several of the legislative measures criminalize gender-affirming procedures.

The laws in Alabama and Arkansas are temporarily blocked as legal challenges make their way through the courts. Georgia’s law allows transgender youth to use puberty blockers, which delay puberty.

In at least 19 other states, legislatures are considering or have introduced bills that would similarly restrict this kind of medical care for transgender youth. These bills are just some of the 321 anti-LGBTQ+ bills introduced or debated in 2023 reported by the ACLU.

Critics say gender-affirming care restrictions are an infringement on the rights of families to make their own health decisions. Supporters of the bans argue that transgender people should wait until they are legally adults before making these decisions—despite the fact that major medical associations endorse gender-affirming care for minors.

In other states like Alaska, Illinois, Minnesota, and California, legislators have made strides in protecting access to care for transgender people. For example, in Alaska, gender-affirming care is covered under Medicaid.

Measures introduced or passed this year in at least 21 states would impose civil penalties for parents and medical providers who choose to provide gender-affirming services to minors. Bills in 11 states would take things a step further by criminalizing such procedures. Although most of the measures focus on classifying gender-affirming care to minors as medical malpractice, some could make it a crime punishable by large fines and prison time.

Other states would outlaw the allocation of public funds toward facilitating any treatment that affirms a transgender youth’s gender identity.

Most of these bills look to bar access to care—mainly surgery, hormone therapy, and puberty blockers—for minors who seek to have their gender identity supported. Some pieces of legislation look to prohibit both state and private health plans from being required to cover these medical services.

The wave of anti-transgender bills reflects the political and cultural chasm over gender-affirming treatments for children, which conservative lawmakers claim are potentially harmful but transgender advocates and experts say are essential to their mental and physical well-being.

The Bottom Line

Health experts say anti-transgender bills are based on scientifically inaccurate information. Gender-affirming care refers to social affirmation, puberty blockers, hormone therapy, and surgical procedures, according to the U.S. Department of Health and Human Services (HHS). Social affirmation refers to the adoption of a name, hairstyles, clothing, pronouns, and restroom use that aligns with someone’s gender identity, according to HHS.

The World Health Organization defines gender-affirming care as a range of social, psychological, behavioral and medical interventions “designed to support and affirm an individual’s gender identity” when it conflicts with the sex they were assigned at birth. Major medical organizations, including the American Medical Association and the American Academy of Pediatrics, consider this type of care to be medically necessary and potentially lifesaving for transgender youth. The AMA asserts that removing access to gender-affirming therapies can lead to increased risks of anxiety, substance use disorder, and suicide.

Most major U.S. medical associations, including those in the fields of pediatrics, endocrinology, psychiatry, and psychology, have issued statements recognizing the medical necessity and appropriateness of gender-affirming care for youth and noting harmful effects of denying access to these services.

Mental Health Implications for Transgender Youth

Over 70% of LGBTQ+ youth—including 86% of transgender and nonbinary youth—say the debate around state laws “restricting the rights of LGBTQ young people” has negatively impacted their mental health, according to a 2022 poll by the Trevor Project, which provides crisis intervention services.

LGBTQ+ youth experience higher rates of depression, anxiety, and suicidality than their non-LGBTQ+ peers. In one CDC study of youth in 10 states and nine urban school districts, a higher share of transgender students reported suicide risk outcomes across a range of metrics than cisgender students. These include, in the past 12 months: having felt sad or hopeless, considered attempting suicide, made a suicide plan, attempted suicide, or had a suicide attempt treated by a doctor or nurse. Inability to access gender-affirming care, such as puberty suppressors and hormone therapy, has been linked to worse mental health outcomes for transgender youth, including with respect to suicidal ideation, potentially exacerbating the already existing disparities.

Conversely, access to this care is associated with improved outcomes in these domains. Policies that aim to prohibit or interrupt access to gender-affirming care for youth can therefore have negative implications for health in potentially life-threatening ways.

Implications for Counselors and Providers

Like parents, counselors and health service providers may be torn between what the medical literature supports is in the best interest of their clients or facing potential sanctions, including violating professional ethics around confidentiality, as in the case of Texas. Although currently blocked by the courts, a 2022 directive by Texas Governor Greg Abbott labels gender-affirming care as child abuse and would require mandated reporters to alert Child Protective Services.

The American Psychological Association said in a statement that a requirement such as the Texas directive (labeling gender-affirming care as child abuse) is a violation of both patient confidentiality and professional ethics. Under such circumstances, providers may be forced to decide whether they will provide the highest standard of care for their patients and potentially face sanctions or obey the state directive but withhold care and potentially violate patient confidentiality and professional ethics. Further, the Biden administration has stated that HIPAA requirements prohibit providers from disclosing use of gender-affirming care without patient consent, except as in narrow circumstances. However, following HIPAA requirements in this case may make providers vulnerable to state sanction.

Looking Ahead

The legal and policy landscape regarding youth access to gender-affirming care is shifting across the country, with an increasing number of states seeking to limit such access and impose penalties. Such policies may have significant, negative implications for the mental health of young people. At the same time, these states are at odds with federal law and policy, and in two recent cases courts have temporarily blocked enforcement of such restrictions.

Moving ahead, it will be important to watch how state bills still under consideration unfold and the final outcome of cases in Alabama, Arkansas, and Texas. Decisions in these cases could determine how such policies intersect with existing federal policies—including the Affordable Care Act Section 1557’s prohibition on sex-based discrimination in health care.