Legal Guide to Gender-Affirming Care

Anti-trans developments in states like Texas are shining a light on the legal rules around access to gender-affirming health care.

By , Attorney

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, including:

  • Are transgender and non-binary people entitled to equal treatment in health care and health insurance coverage?
  • Can the government ban doctors from providing gender-affirming care to transgender kids and teens? And even send them to jail or prison for providing it?
  • Is gender-affirming care a form of child abuse or a life-saving treatment for gender dysphoria?

What Is Gender-Affirming Care?

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:

  • 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.

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.

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 ban gender-affirming care for young people.

Many of these laws make it a crime or a cause for professional discipline for medical providers to offer gender-affirming care to minors. Some states are also targeting parents who help their children access gender-affirming medical care. The governor of Texas, for example, asked state agencies in February 2022 to investigate parents and guardians of transgender children as potential child abusers if their children receive gender-affirming care. (In March 2022, a judge issued a statewide order halting those investigations. That order was tossed by the Texas Supreme Court in May 2022, clearing the way for state agencies to resume investigating parents and doctors who provide gender-affirming care for trans youth.)

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."

Critics of these laws argue, among other points, that preventing healthcare professionals from speaking to their patients—and their patients' parents—about medically accepted treatments violates the First Amendment to the United States Constitution.

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. (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.

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