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September 29, 2023 Feature

Prohibitions on Gender-Affirming Care Dominate the 2023 Legislative Season

Sherie L. Edwards
Twenty states have laws prohibiting gender-affirming care for minors, from outright criminalization to placing medical licenses at risk.

Twenty states have laws prohibiting gender-affirming care for minors, from outright criminalization to placing medical licenses at risk.

Lerbank / iStock / Getty Images Plus

The 2022-2023 legislative session has been remarkable for the number of anti-LBGTQ+ bills that have been introduced. According to the ACLU, as of April 3, over 400 bills have been introduced, more than twice the number (180) in 2022. While many of these bills have focused on education, almost 100 have targeted gender-affirming care for minors with gender dysphoria. These bills were introduced under the guise of protecting children, some going as far as to label gender-affirming care as child abuse. Twenty states have passed laws prohibiting such care and run the gamut of outright criminalization to placing medical licenses at risk. No matter what your opinion may be of gender-affirming care for minors, if you represent healthcare providers or health facilities, it is essential to know how the laws in your state will impact your client.

I have attempted to note when a suit has been filed against a state seeking an injunction and the landscape changes regularly. Also, all states have exceptions to the prohibitions on treatment, but they are all rather lengthy. Finally, the use of the word ‘physician’ applies to all healthcare professionals involved in the treatment of a minor. The following is a brief overview of the law in each of the 20 states.

Alabama: Prohibits medical and surgical gender-affirming treatment to minors under the age of 19. The penalty is up to 10 years in prison and up to a $15,000 fine. Effective May 8, 2022.

Arizona: Although the law prohibits the provision of irreversible gender reassignment surgery to anyone under the age of 18, no specific penalty is stated. Effective March 31, 2023.

Arkansas: Creates a right of action against a healthcare professional for providing medical or surgical gender-affirming treatment, including a 15-year statute of limitations for medical malpractice claims by the minor patient after age 18. The law does not carry civil or criminal penalties or actions against a medical license—effective date approximately August 1, 2023 (90 days after sine die).

Florida: This law restricts care for both minors and adults. For adult care, the use of telemedicine, nurse practitioners, and physicians’ assistants are banned for the initial episode of care. Providing care to children is prohibited, as is using state funds to pay for such treatment. Physicians who violate the law can be convicted of a first-degree misdemeanor or third-degree felony and up to a maximum of $5000 in fines. Effective date May 17, 2023. (Note: on June 6, a preliminary injunction was issued by the US District Court in the Northern District of Florida).

Georgia: Bans the provision of gender-affirming medical or surgical treatment to a minor under the age of 18. A physician faces licensure revocation for violating the law. Effective date July 1, 2023.

Idaho: Bans treatment for gender dysphoria with puberty blockers and hormones for minors (gender-affirming surgery was already prohibited) and carries a penalty of up to 10 years in prison for violating the law. Effective January 1, 2024. (Note: ACLU filed a lawsuit against the state on May 31, 2023).

Indiana: Bans medical and surgical gender-affirming care. The law goes further and requires minors already receiving hormone therapy for transitions to ‘de-transition’ by the end of the year. The statute of limitations is extended until the minor’s 28th birthday, and the physician faces disciplinary action from the medical board. Effective date July 1, 2024.

Iowa: Prohibits the provision of medical or surgical gender-affirming treatment to those under the age of 18. Gender-affirming medical treatment that is already started must cease by the end of 2023. Physicians face licensing board discipline for violations of the law. Effective date July 1, 2023.

Kentucky: Bans the provision of medical and surgical gender-affirming care and extends the statute of limitation to the later of the patient attaining the age of 30 or “three years from the time the person discovered or reasonably should have discovered that the injury or damages were caused by the violation.” If the healthcare practitioner’s licensing board finds that the provider has violated this law, the provider’s license ‘shall be revoked .’Effective mid-July 2023. (Note: the ACLU filed the suit on May 3, challenging the law).

Mississippi: Bans medical and surgical gender-affirming treatment for minors under the age of 18. Physicians can be fined up to $500 and face revocation of licensure. Effective February 28, 2023.

Missouri: Bans medical and surgical care for minors; prohibits Medicaid coverage for adult treatment; adult prisoners must pay for gender-affirming treatment from their personal funds. In a compromise with Senate Democrats, the law sunsets in 2027. Physicians violating the law face licensure revocation. Effective August 28, 2023.

Montana: Bans medical and surgical care; extends the statute of limitations to 25 years following treatment for “physical, psychological, emotional or physiological” injury. Physicians also face discipline from the medical board, including, at a minimum, a yearlong suspension. Effective April 28, 2023.

Nebraska: Bans medical and surgical treatment for minors under the age of 19. Providers are subject to disciplinary action by the licensure board for violations of the law. Effective October 1, 2023.

North Dakota: Bans the provision of medical or surgical treatment to minors. Physicians who perform surgical treatment face felony charges (10 years/$20,000 fine); those who prescribe puberty blockers or hormones face misdemeanor charges (360 days in prison/$3000 fines). Effective April 19, 2023.

Oklahoma: Bans medical and surgical treatment. A physician who knowingly violates the law is subject to felony charges which must be brought before the patient’s 45th birthday. Effective May 1, 2023. (Note: the state is not enforcing the law while the opposition seeks an injunction).

South Dakota: bans medical and surgical treatment to minors under the age of 18. Physicians who violate the law risk licensure revocation. Effective July 1, 2023.

Tennessee: Bans medical and surgical gender-affirming treatment (mental health services are excluded) to anyone under the age of 18. The law expands the statute of limitations to 30 years from the minor attaining the age of 18 (or ten years from the date of death if the minor dies). Physicians face a fine of $25,000 per violation and sanctioning of licensure. Effective July 1, 2023. (Note: ACLU filed suit against the state on April 20).

Texas: Ban gender-affirming medical and surgical treatment. Physicians face licensure revocation for violating the law. Effective September 1, 2023.

Utah: Prohibits gender-affirming medical treatment for those minors under the age of 18 not diagnosed with gender dysphoria before January 28, 2023, and prohibits surgical treatment. The division of professional licensing is tasked with creating a transgender treatment certification for healthcare professionals. After January 1, 2024, any physician who provides treatment without certification will be considered to be violating the requirements for unprofessional conduct. A malpractice lawsuit can be brought before the patient reaches 25 years of age. Effective January 28, 2023.

West Virginia: Prohibits medical or surgical treatment for gender dysphoria to those under the age of 18, except in the case where a patient has been diagnosed with severe gender dysphoria by at least two clinicians (one of which is a mental health provider) and the minor, minor’s parents and the physician agree in writing to hormonal therapy. No penalty for violation of the law is stated. Effective January 1, 2024.

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Sherie L. Edwards

State Volunteer Mutual Insurance Co.

Sherie L. Edwards is an attorney with State Volunteer Mutual Insurance Co.