Legal Guide to Gender-Affirming Care

Updated March 22, 2024

Gender-affirming care is emerging as a hot-button legal issue, like abortion, that pits patients and doctors against politicians and lawmakers in some states. The battle over gender-affirming care raises constitutional questions about who deserves equal protection and freedom of speech in the medical setting. People seeking gender-affirming care often face a confusing patchwork of state laws and policies that vary widely from state to state.

What Is Gender-Affirming Care?

According to the Association of American Medical Colleges (AAMC), gender-affirming care refers to a range of social, psychological, behavioral, and medical interventions designed to support and affirm an individual's gender identity when it conflicts with the gender they were assigned at birth.

The goal of gender-affirming care is to help people match their physical—and sometimes legally recognized—presentation with their gender identity.

Transition is a personal process that looks different for different people. Some individuals need hormone therapy and surgery to treat their gender dysphoria; others don't. Health professionals help transgender and non-binary people explore different ways to express gender identity and medical treatment options for gender dysphoria.

Doctors and therapists can help people with their psychological and medical transition, including through:

• hormone therapy
• hair removal
• speech therapy
• counseling (individual, couple, family, group)
• reproductive care (like sperm or egg storage), and
• gender confirmation surgeries.

Behavioral health providers can guide and support people with their social transition, including when it comes to:

• changing wardrobe or hairstyle
• packing (using padding or a phallic object to give the appearance of a penis)
• tucking (hiding the bulge of a penis and scrotum to create a more feminine appearance)
• binding (using tight garments to flatten breasts)
• prostheses (inserts in clothing or bras to change breast, hip, or butt size)
• coming out to partners, children, family, friends, coworkers, and
• changing identity documents to update name, gender identity, and pronoun use.

Laws on Gender-Affirming Care

Every major medical association in the United States, including the American Medical Association (AMA), now recognizes that gender-affirming care is medically necessary to improve the physical and mental health of transgender and gender-diverse people.

But not all insurers are convinced. Some health insurance plans cover both surgical and nonsurgical gender-affirming care. Others exclude gender-affirming services, like hair removal, viewing it as cosmetic and not medically necessary.

Lawmakers are also mixed in their response to gender-affirming care. The federal government and some states have passed anti-discrimination laws to protect people from being denied health insurance coverage or care based on gender identity. Other states allow health insurance plans, including Medicaid and state employee benefits, to exclude gender-affirming health care from coverage. Still other states have no explicit laws or policies either way.

Federal Law on Gender-Affirming Care

The Affordable Care Act (Section 1557) includes broad civil rights protections in health care, barring discrimination based on race, color, national origin, sex, age, or disability in all health care programs or activities that receive federal funding. (42 U.S. Code § 18116 (2022).)

The Obama administration interpreted Section 1557's ban on sex discrimination to include discrimination based on gender identity. The Trump administration erased those protections in 2020. The Biden administration then restored them in 2021, bolstered by a landmark U.S. Supreme Court decision ruling that gender identity discrimination in the workplace is illegal. (Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020).)

Section 1557 offers important protections for people seeking gender-affirming care. But it only applies to health care programs that receive federal funding and doesn't require health insurance policies to cover any particular procedure or treatment. Insurers can still deny some gender-affirming care on a case-by-case basis, and state laws and policies related to private insurance, Medicaid programs, and employee benefits vary widely.

Section 1557 protects transgender and nonbinary people from discrimination in certain health care settings in a few ways. The law:

• prevents health professionals and insurers from denying overall health care and coverage based on sex and gender identity
• prohibits insurers from denying a person sex-specific care because that person identifies as another gender (for example, a transgender man can't be denied a mammogram or pap smear and a transgender woman can't be denied a prostate cancer screening or a "well male exam")
• outlaws blanket bans on both gender-affirming care itself and on specific gender-affirming procedures (like facial feminization surgery), and
• prevents insurance companies from placing discriminatory limits on coverage for gender-affirming care (for example, if a plan covers breast reconstruction for cancer treatment, or hormones to treat post-menopause symptoms, it can't exclude these procedures to treat gender dysphoria).

State Laws on Gender-Affirming Care

People seeking gender-affirming care often face a confusing patchwork of state laws and policies. Despite Section 1557 protections, the reality is that access to gender-affirming care varies widely from state to state. Some private employers and insurers offer gender-affirming health benefits; others don't. Some state employee health benefits cover gender-affirming care; others don't. Even state programs that receive federal funding, like Medicaid, have some flexibility in setting eligibility criteria.

Also, the law on gender identity discrimination is new. Some insurance plans and some Medicaid and Medicare providers haven't updated their policies. And some plans and providers ignore federal law.

Most state laws about gender-affirming health care and insurance fall into three categories:

1. Some allow coverage for gender-affirming care and ban health insurance discrimination based on gender identity.
2. Some have no explicit policy on gender-affirming care and health coverage.
3. Some explicitly exclude gender-affirming health care and coverage.

The Movement Advancement Project (MAP) has put together a map of gender-affirming healthcare laws and policies across the country that looks strikingly similar to the 2020 electoral map—with "blue states" tending to offer the most access to gender-affirming care and insurance coverage and "red states" offering less or none.

Bans on Gender-Affirming Care for Transgender Youth

Laws concerning transgender youth take many forms. Some are aimed at preventing kids and teens from playing sports consistent with their gender identity. Others restrict the bathrooms transgender and non-binary people can use at school. And a growing number of state laws seek to ban gender-affirming care for young people.

Utah became the first state to ban minors from receiving gender-transition health care in January 2023. The Utah law prohibits transgender youth from receiving gender-affirming surgery and blocks access to hormone therapy with limited exceptions. Republic lawmakers are quickly pushing for similar bans nationwide through legislative actions or policy measures.

Which States Currently Have Gender-Affirming Care Bans?

According to MAP, as of March 2024, states that have passed total or partial gender-affirming care bans include:

• Alabama
• Arizona
• Arkansas
• Florida
• Georgia
• Idaho
• Indiana
• Iowa
• Kentucky
• Louisiana
• Mississippi
• Missouri
• Montana
• Nebraska
• North Carolina
• North Dakota
• Ohio
• Oklahoma
• South Dakota
• Tennessee
• Texas
• Utah
• West Virginia, and
• Wyoming.

Not all bans have gone into effect yet and some bans are facing legal challenges.

Who Is Affected by State Bans on Transgender Health Care?

According to the Williams Institute, a research center at the U.C.L.A. School of Law, an estimated 300,000 teenagers identify as transgender in the United States. Roughly half of them (144,500) are at risk of being denied gender-affirming medical care. The AMA has urged governors to oppose state legislation that would ban medically necessary gender transition-related care for minor patients, calling the laws a "dangerous intrusion on medicine."

Proponents of state bans on gender-affirming care say that the laws are necessary to protect kids from harmful, permanent medical procedures. Critics of the laws say that cutting off or denying minors gender-affirming care is what causes harm to minors, including an increased risk of suicide, heightened gender dysphoria, and depression.

Most bans target gender-affirming care for trans adolescents, but many states are trying to restrict care for people 18 years old and over. In April 2023, Missouri became the first state to restrict some gender treatments for people of all ages. Other states, including Florida, have tried to prohibit Medicaid from covering some kinds of gender care for transgender people of all ages.

Is It Legal for States to Ban Gender-Affirming Care?

The battle over state bans on gender-affirming care is shifting from state legislatures to courtrooms all over the country. Most of the legal challenges argue that bans violate the equal protection and the due process clauses of the 14th Amendment to the U.S. Constitution. Specifically, people and organizations suing over the bans argue that the laws violate parents' due process right to manage their children's medical care and discriminate against trans kids.

Most of the lawsuits are in the early stages, with courts simply deciding whether to block the bans or allow them to stay in place while the legal challenges play out. But, as of late 2023, two federal appeals courts have found that access to gender-affirming care isn't protected by the Constitution, leading many legal experts to believe that the issue may be headed to the U.S. Supreme Court.

Transgender Refuge States for Gender-Affirming Care

Not all states are trying to limit or ban gender-affirming health care for young people. In September 2022, Governor Newsom signed Senate Bill 107. The law (often described as a "shield" or "refuge" law), establishes California as a sanctuary for gender-affirming care.

Other states, including Colorado, Connecticut, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Vermont, and Washington, and a handful of cities have also passed shield laws protecting health care providers, transgender people, and their families.

Legal Resources on Gender-Affirming Care and More

If you believe you've experienced discrimination in health care, you can file a civil rights complaint with the U.S. Department of Health and Human Services, Office for Civil Rights (OCR). Don't delay—your claim must be filed within 180 days of when the discrimination happened, though the OCR may give you more time if you have a good reason for missing the deadline.

If the OCR accepts your complaint, the agency will investigate and potentially get the health care program or provider to change its discriminatory practices or provide you with a service.

You might also want to file a complaint about insurance-related discrimination with your state's Department of Insurance (DOI). The department will investigate the complaint and try to get the insurer to fix the problem if the insurer has mishandled your claim or broken a law or regulation.

If you would like to file a civil lawsuit in court, talk to a lawyer. You can typically file a lawsuit instead of, or in addition to, a civil rights complaint with the OCR or a complaint with your state's DOI.

If your health insurance company refuses to pay a claim or ends your coverage, you might have a right to appeal the decision and have it reviewed by an independent third party.

The American Bar Association has put together a list of transgender resources, including organizations that offer legal and support services.

Trans Lifeline is a trans-led organization that connects trans people to community support and resources. Call (877) 565-8860 to speak with a trans/nonbinary peer operator.