Lawmakers in more than two dozen states are weighing legislation that aims to restrict or ban access to gender-affirming medical care for transgender youth, prompting legal challenges from LGBTQ rights groups that allege the bills are discriminatory.
Measures introduced this year in at least 21 states would impose civil penalties for parents and medical providers who choose to provide gender-affirming services to minors. Bills in 11 states would take things a step further by criminalizing such procedures. Others would outlaw the allocation of public funds toward facilitating any treatment that affirms a trans youth’s gender identity.
The wave of nearly 100 bills reflects the political and cultural chasm over gender-affirming treatments for children, which conservative lawmakers view as potentially harmful but transgender advocates say are essential to their mental and physical well-being.
Gender-affirming care encompasses a range of social, psychological, behavioral, and medical interventions aiming to support a person’s gender identity, according to the Association of American Medical Colleges. It can include hormone-related treatments that delay puberty or promote development of masculine or feminine sex characteristics as well as specific surgical interventions.
The AAMC represents US teaching hospitals.
Bloomberg Law analyzed bills introduced during states’ 2022-23 legislative cycles. We read the text of the bills to determine what provisions would affect gender-affirming care for youth, what penalties were proposed if parents or health providers violated the law, and whether similar medical care was allowed for non-trans children. In all, we analyzed 94 pieces of legislation, some of which have been signed into law. The data is up to date as of Feb. 17.
Republicans hold a majority in 30 state legislatures. Of those, six—Arkansas, Alabama, Arizona, South Dakota, Tennessee, and Utah—have enacted laws restricting access to gender-affirming procedures, including South Dakota’s recently passed H.B. 1080, which bans gender reassignment surgery and hormone treatments for minors.
LGBTQ advocacy groups are aggressively challenging those laws, winning early legal skirmishes in states like Arkansas and Alabama.
The ACLU has vowed to sue over the South Dakota law, citing concerns that it undermines the health of trans youth and impinges on the rights of providers. The organization also plans to sue in Utah, where state lawmakers last month passed H.B.127, which banned gender reassignment surgery and placed an indefinite moratorium on hormone treatments for minors.
“What these bills essentially do is say that anything you could do to make sure a transgender young person is okay would be outlawed,” said Kierra Johnson, executive director of the National LGBTQ Task Force.
Ideological Divide
The measures banning gender-affirming procedures and hormone therapies play into the greater ideological divide between conservative and progressive policymakers on the treatment of gender dysphoria, which the American Psychological Association cites as “psychological distress” stemming from the incongruence between gender assignment and identity.
Questions over whether or not children can make informed decisions on the risks of gender-affirming treatment have long been on the minds of conservatives.
Jeffrey Singer, a general surgeon and a senior health policy fellow at the Cato Institute, said he believes that not enough research has been done on the long-term effects of treatments like hormone therapy.
“A lot of these gender-affirming procedures, either medical or surgical, are irreversible. And we still are learning about whether puberty blockers might have long-term harmful effects on the patient,” Singer said. “They need to be an adult where they can get informed consent, or else you’re really not respecting their autonomy and agency.”
This position conflicts with the scientific consensus derived by institutions like the American Medical Association, which asserts that gender-affirming therapies are medically necessary and that removing access can lead to increased risks of anxiety, substance use disorder, and suicide.
Omar Gonzalez-Pagan, counsel and the health-care strategist at Lambda Legal, which represents LGBTQ people in civil rights disputes, also pointed out that it is a minor’s parents or legal guardians who consent to medical care. “Under [this] theory, no medical care could be provided to a minor,” he said.
Gonzalez-Pagan said bills prohibiting gender-affirming treatments are inherently discriminatory because they allow access to the same therapies for children with other medical conditions.
The Bloomberg Law analysis found that in each of the 27 states seeking prohibitions on gender-affirming treatments, bills would allow the same procedures for individuals with medical conditions such as precocious puberty and intersexuality.
Civil, Criminal Penalties
The surge in legislation targeting care for transgender youth began in March of 2021, when lawmakers in Arkansas passed the Save Adolescents from Experimentation, or SAFE, Act (H.B. 1570), becoming the first state to institute a blanket ban on gender-affirming treatments for minors.
So far in the 2022-2023 legislative cycle, 27 states have introduced bills aiming to restrict such care through measures such as funding embargoes, civil fines, medical license revocations, and criminal penalties.
The Bloomberg Law analysis of 94 bills proposed nationwide found lawmakers in 11 states had introduced measures containing criminal penalties for health care providers.
Oklahoma’s H.B. 1011 would impose the harshest penalty, punishing medical providers who perform gender-affirming procedures with a maximum of 10 years imprisonment and a fine of up to $100,000.
H.B. 1011 is one of 15 laws seeking to limit access to transgender health care introduced in the Oklahoma legislature in 2023. Another, S.B. 129, would make it a felony to provide gender-affirming care to anyone under the age of 26.
The ACLU and Lambda Legal have threatened to sue if the bills pass.
Public Funding
Along with imposing criminal penalties, S.B. 129 would prohibit employees and public facilities from providing—and the state Medicaid program from funding—treatments meant to address gender dysphoria.
In 16 states, legislators have introduced bills containing language that specifically prohibits the public funding of procedures that treat gender dysphoria.
Health-care providers in these states would also be subject to the revocation of their medical licenses if they chose to provide gender-affirming care to youth patients.
“The politicians that are introducing this kind of legislation are seeking to override the rights of parents and the best practice medical care,” said Sasha Buchert, senior attorney at Lambda Legal and the first openly transgender person to be appointed to the Oregon State Hospital Advisory Board.
“Even in states where these things don’t pass, these laws stand to cause a chilling effect which would cause enormous harm to families and their providers,” Buchert said.
In October 2022, the Vanderbilt University Medical Center Clinic for Transgender Health, one of the largest transgender health clinics in the country, was forced to pause gender affirmation surgeries on patients under age 18 after more than 50 Tennessee lawmakers penned a letter requesting the hospital do so or risk reprisal from legislators.
Legal Challenges
States that have passed these laws have been embroiled in legal battles over their constitutionality.
Arkansas’s SAFE Act, enacted over the veto of Gov. Asa Hutchinson (R), was met with a lawsuit from the ACLU over concerns the law would “prohibit healthcare professionals from providing or even referring transgender young people for medically necessary healthcare.”
Judge James M. Moody Jr. of the US District Court for the Eastern District of Arkansas temporarily blocked the law, and the US Court of Appeals for the Eighth Circuit agreed that plaintiffs, children and their parents, “have demonstrated a likelihood of success on the merits” of their claim that the law violates the equal protection clause of the 14th Amendment.
Arkansas Attorney General Tim Griffin (R) said his office will continue to defend the act’s constitutionality.
“Arkansas is part of a growing consensus of states and European countries such as the United Kingdom that have taken action to restrict these dangerous practices,” he said in a statement to Bloomberg Law.
The equal protection argument also found a toehold in Alabama, where another federal judge, Liles C. Burke of US District Court for the Middle District of Alabama, accepted the Department of Justice’s request for a preliminary injunction restraining the enforcement of the provision of the state’s S.B. 184 that bans puberty blockers and hormone therapy for trans youth.
Burke said the plaintiffs, including parents suing on behalf of their children, were likely to succeed on their claims that the law violated the 14th Amendment’s equal protection and due process clauses.
The Alabama attorney general’s office did not respond to a request for comment.
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