Article Published: 9/20/2023
In May of this year, we reported on state legislation restricting gender-affirming care across the nation. Since that time, several state’s legislators and their supporters have continued to pass new bills restricting gender-affirming health care. In addition, other states have passed laws that place limits on transgender youth participation in school athletics, public dress codes for transgender or nonbinary adults, which bathrooms and pronouns they can use, and school literature on LGBTQ people. Missouri, South Carolina, and Texas have each introduced over 35 anti-transgender bills in their state houses this year. In April, the Human Rights Campaign (HRC) offered this snapshot of 2023 anti-LGBTQ+ legislation—Over 520 anti-LGBTQ+ bills have been introduced in state legislatures and of these, over 220 bills specifically target transgender and nonbinary people. The American Civil Liberties Union (ACLU) actively tracks and updates legislation that negatively impacts LGBTQ people.
These bills are often not started by local grassroots groups or constituent demand but from the urging of national interest groups who have coordinated efforts with state legislators and governors. Many of the bills either directly impact the services that counselors are able to provide to clients or indirectly impact mental health services. Professional counseling organizations have spoken out against legislation that limits the ability of counselors to serve their clients. Relative to counseling membership associations, the American Counseling Association (ACA) and SAIGE (Society for Sexual, Affectional, Intersex, and Gender Expansive Identities), a division of ACA, advocate for the equitable inclusion of LGBTGEQIAP+ persons within the counseling profession and beyond. For more information on position statements and advocacy by ACA and SAIGE, and to get involved, please visit the SAIGE website.
Scan of Recent Enacted State Legislation
Many of the bills mentioned below include references to counseling or mental health services. Counselors serving clients in the states of focus are encouraged to review the full text of the bills to ensure that they are aware of any potential impacts on clinical practice and client engagement.
Florida – A new law restricts gender-affirming treatments for minors, drag shows, bathroom usage, and which pronouns can be used in school.
Missouri – A new law prevents transgender minors from accessing gender-affirming medical care and bars transgender women and girls from competing on female sports teams. The ban will prohibit health care providers in the state from administering medications, including puberty blockers and hormone replacement therapy, to treat gender dysphoria in minors.
Texas – Legislation bars transgender kids from getting puberty blockers and hormone therapies. Though the new law faces legal challenges, it went into effect on Sept. 1.
Louisiana – A new law bans gender-affirming health care for transgender minors. The measure bars health care providers from administering gender-affirming medical care to patients younger than 18 under the threat of having their professional licenses revoked.
North Carolina – In August the North Carolina legislature overrode the governor’s veto of three bills and passed legislation to ban gender-affirming care for transgender youth, stop transgender females from competing in female athletics, and restrict education on sexual orientation and gender identity in the education system.
The above represent only a fraction of the anti LGBTQ laws that are being enacted in the states.
Pushback by the Courts and Other States
Despite recent legislative efforts to restrict health care services to transgender youth, federal court decisions have blocked some of these policy initiatives before they went into effect. It is anticipated that more challenges to legislation will be forthcoming. Currently, the states of Florida, Georgia, Idaho, Indiana, Kentucky, Montana, Nebraska, Oklahoma, Tennessee, and Texas are in court battles with families and health professions seeking to challenge or block state bills from taking effect. The legislative landscape is shifting quickly, and professional counselors should stay informed to ensure they are practicing appropriately within the legislative parameters set forward in their states.
Arkansas – In June, a federal judge struck down Arkansas’s first-in-the-nation ban on gender-affirming care for children as unconstitutional, the first ruling to overturn such a prohibition, as we have seen a growing number of states adopt similar restrictions. U.S. District Judge Jay Moody issued a permanent injunction against the Arkansas law, which would have prohibited physicians from providing gender-affirming hormone treatment, puberty blockers, or surgery to anyone under 18. Arkansas’s law also would have prohibited doctors from referring patients elsewhere for such care.
Florida – Saying “gender identity is real,” a federal judge temporarily blocked portions of a new Florida law that bans transgender minors from receiving puberty blockers, ruling that the state has no rational basis for denying patients treatment. Judge Robert Hinkle issued a preliminary injunction, saying three transgender children can continue receiving treatment. “The elephant in the room should be noted at the outset. Gender identity is real. The record makes this clear,” Hinkle said, adding that even a witness for the state agreed.
In response to state activity, other governors and state lawmakers across the country are mobilizing against restrictions on transgender health care by establishing their states as sanctuaries for gender-affirming care.
Nevada – Gov. Joe Lombardo has signed two bills related to protecting transgender rights and vetoed another, bucking trends from governors across the country who have pushed anti-transgender policies. Lombardo’s signing of a bill requiring commercial health plans, including Medicaid, to provide coverage of all gender-affirming surgeries was the third major bill related to transgender health and rights to be signed by the governor. Another bill he signed earlier requires the Department of Corrections to adopt behavioral and medical health standards for transgender and gender-nonconforming people inside the state’s prisons, including cultural competency training for guards in those institutions.
New York – A bill has cleared the legislature and was signed by Gov. Kathy Hochul that will protect gender-affirming care in the state.
Maryland – Gov. Wes Moore signed an executive order making Maryland the 11th state to declare itself a sanctuary.
California – In 2022, California became the first state in the nation to create a sanctuary for transgender youth seeking gender-affirming medical care.
California has since been joined by Colorado, Connecticut, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Vermont, and Washington. A growing number of cities, including New York City; Kansas City, Missouri; and West Hollywood, California, also have become sanctuaries. These states and cities are emerging as havens with legal protections to shield health care providers, transgender people, and their supporters from lawsuits and criminal penalties levied by other states.
Efforts to Support or Advocate
National organizations are also weighing in on gender-affirming care issues. The American Medical Association (AMA) has moved from a passive position to proactively protecting gender-affirming care. In March the American Counseling Association (ACA) endorsed along with 20 other medical and mental health–related organizations, House Resolution 269 (H. Res. 269) sponsored by U.S. Rep Pramila Jayapal. The resolution recognizes that it is the duty of the federal government to develop and implement a Transgender Bill of Rights to protect and codify the rights of transgender and nonbinary people under the law and ensure their access to medical care, shelter, safety, and economic security. In addition, it aims to guarantee certain rights for transgender and nonbinary people with respect to public services and accommodations, employment, housing, health care, and other specified areas.
In May 2023 SAIGE partnered with ACA to issue two episodes on The Voice of Counseling titled “Dismantling Hate Against the Transgender Community – The Power of Advocacy – United for Transgendered Rights.” During this session, Dr. Michael Chaney, Jay Kaplan, and Dr. Aprille Woodson discussed anti-transgender legislation, laws and legal cases and the counselor’s role in supporting transgender clients’ rights. The next session featured Gene Dockery of the Society for Sexual, Affectional, Intersex, and Gender Expansive Identities (SAIGE), Brian Banks (ACA), and Dr. Aprille Woodson (ACA) discussing advocacy, transgender equality, the counselor’s role, and the support of allies for transgender rights.
The LGBTQ rights group Human Rights Campaign (HRC) declared a state of emergency for LGBTQ Americans, the first time the organization has ever done so. HRC has asserted that legislation is imperiling the health and safety of transgender and other gender-diverse Americans and their families.
The National Board for Certified Counselors is invested in advocacy efforts to ensure that counselors are prepared to serve their clients and are able to provide those services without fear of litigation or harm to themselves. Through the provision of webinars, professional development, and the advancement of critical scholarship, NBCC and certified counselors are supporting and promoting the expansion of the knowledge and skills necessary to provide gender-affirming care.
NBCC's legislative advocacy team closely tracks actions taken by states to ban or protect gender-affirming care and works with partner counseling organizations and counselors to reaffirm the position that equitable access to health care, which includes gender-affirming care, is fundamentally necessary for a productive and successful society. Mental health is an essential element of health, and all people are deserving of respect and decency. Counselors are prepared to provide essential mental health care, and legislative barriers to services provided by counselors may render our society and communities vulnerable.
NBCC is committed to reducing barriers to access and increasing utilization of counseling services and is striving to leverage the power of counselor certification to advance health equity for all people. The NBCC Government and Legislative Affairs team will work to keep counselors informed about legislation and policies that impact professional counseling.
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