Updated August 18, 2023
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.
According to WebMD, gender-affirming care "refers to treatments, ranging from surgery to speech therapy, that support a transgender or nonbinary person in their transition."
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:
Behavioral health providers can guide and support people with their social transition, including when it comes to:
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.
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.
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:
A MAP of gender-affirming healthcare laws and policies 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.
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 across the country either through legislative actions or policy measures.
According to U.S. News, as of August 17, 2023, states that have passed total or partial bans include:
Not all bans have gone into effect yet and some bans are facing legal challenges.
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."
In September 2022, Governor Newsom signed Senate Bill 107. The law, which took effect on January 1, 2023, provides legal protection for transgender kids and their families who come to California after facing criminal prosecution or forced separation in other states.
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. (Learn more about Health Plan Disputes.)
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.