Health Care Provider Considerations for Gender-Affirming Care | Practical Law

Health Care Provider Considerations for Gender-Affirming Care | Practical Law

A Practice Note addressing the issues that health care providers should consider when providing gender-affirming health care services and gender dysphoria treatments. This Note describes the implications for health care providers, including physicians, hospitals, clinics, pharmacies, non-physician practitioners, and pharmacists. This Note considers the current legal landscape, including state gender-affirming care laws, provider penalties and protections, obligations of providers under the Health Insurance Portability and Accountability Act (HIPAA), and potential implications for health care providers.

Health Care Provider Considerations for Gender-Affirming Care

Practical Law Practice Note w-038-7236 (Approx. 18 pages)

Health Care Provider Considerations for Gender-Affirming Care

by Practical Law Health Care
Maintained • USA (National/Federal)
A Practice Note addressing the issues that health care providers should consider when providing gender-affirming health care services and gender dysphoria treatments. This Note describes the implications for health care providers, including physicians, hospitals, clinics, pharmacies, non-physician practitioners, and pharmacists. This Note considers the current legal landscape, including state gender-affirming care laws, provider penalties and protections, obligations of providers under the Health Insurance Portability and Accountability Act (HIPAA), and potential implications for health care providers.
The legal landscape for providers of gender-affirming health care services is increasingly challenging after numerous states have enacted bans on that care, while other states have enacted protections for providers of gender-affirming health care services. The federal government under the Biden administration has also taken steps to promote access to health care for LGBTQ+ people and to prohibit discrimination on the basis of gender identity.
This Note addresses what health care providers should be considering as they provide gender affirming health care services and gender dysphoria treatments (including puberty-delaying medication, hormone therapy, mastectomy, mammaplasty, vaginoplasty, and vocal therapy). The Note details federal actions, the current landscape of state laws, and the implications for health care providers.
Providers must now consider many issues when providing gender-affirming health care services, including:

Federal Actions

Although federal law and regulations do not explicitly protect gender-affirming care, the federal government has taken actions to protect access to gender-affirming health care services and to prevent discrimination on the basis of gender identity. The Biden administration has issued Executive Orders and other guidance directing federal agencies to take certain actions.
President Biden issued an Executive Order on January 20, 2021, directing federal agencies to review existing regulations and policies to prevent and combat discrimination based on gender identity and sexual orientation (Exec. Order No. 13,988, 86 Fed. Reg. 7023 (Jan. 20, 2021)).
The White House issued a Fact Sheet on March 31, 2022, summarizing administration actions taken to protect access to gender-affirming health care services and prevent discrimination on the basis of gender identity (Fact Sheet: Biden-⁠Harris Administration Advances Equality and Visibility for Transgender Americans (Mar. 31, 2022)).
Federal agencies have also taken steps to prohibit discrimination on the basis of gender identity rights and access to gender-affirming health care. For example:

Nondiscrimination Under Civil Rights Law

Section 1557 of the ACA imposes a nondiscrimination requirement that prohibits individuals from being excluded from participation in, being denied the benefits of, or being subject to discrimination under a health program or activity that receives federal financial assistance on specified grounds (42 U.S.C. § 18116; see Practice Note, Affordable Care Act (ACA) Overview).
Specifically, Section 1557 incorporates the grounds for discrimination that are prohibited under:
Together, these provisions prohibit discrimination based on race, color, national origin, sex, age, or disability (45 C.F.R. § 92.1).

Regulatory Actions

Section 1557 has been the topic of significant implementing regulations issued by three successive presidential administrations (including the current one). These implementing regulations include:
  • Final regulations issued by the Trump administration in June 2020, which replaced and significantly scaled back the Obama-era regulations (85 Fed. Reg. 37,160 (June 19, 2020)); see Practice Note, June 2020 Final Regulations Under ACA Section 1557: Nondiscrimination in Health Programs and Activities).
  • Final regulations issued by the Biden administration in May 2024, which reversed the Trump administration's June 2020 final regulations (89 Fed. Reg. 37,522 (May 6, 2024)). While these regulations do not expressly define gender-affirming care, HHS indicated that it generally uses this term to mean care designed to treat gender dysphoria (including services such as counseling, hormone therapy, and surgery). In addition, the regulations:
    • hold HHS' health programs and activities to the same non-discrimination standards as recipients of federal financial assistance;
    • state that Medicare Part B payments may be considered as a form of federal financial assistance that triggers the enforcement of civil rights laws that HHS enforces;
    • prohibit discrimination on the basis of sex and contain provisions that expressly address gender-affirming care, for example, if medically necessary treatments are categorically excluded when sought by transgender participants as gender-affirming care, but these same treatments are covered for cisgender participants, the exclusion could deny transgender individuals access to coverage based on their sex;
    • state that discrimination based on sex includes LGTBQI+ patients;
    • state that federal protections for religious freedom and conscience still apply;
    • state that sex includes gender identity in non-discrimination laws that apply to insurers and insurance exchanges;
    • do not categorically require Section 1557 covered entities to provide gender-affirming care or establish a standard of care regarding gender-affirming care; and
    • require that health care providers that receive federal financial assistance must provide neutral, nondiscriminatory care but are not required to offer any particular health care (including gender-affirming care) if they do not believe the care is clinically appropriate (but cannot refuse to provide gender-affirming care based on a belief that the care is never clinically appropriate) or have a religious or conscience objection.
(89 Fed. Reg. at 37,578.)

Agency Guidance

The Section 1557 nondiscrimination rules were intended to address discrimination involving transgender individuals. HHS announced in May 2021 that it intends to interpret and enforce Section 1557's prohibition on the basis of sex to include discrimination on the basis of gender identity and sexual orientation. HHS indicated that:
  • This interpretation provides a guide to the agency in processing complaints and conducting investigations.
  • The agency's Section 1557 enforcement complies with the Religious Freedom Restoration Act (RFRA) and other legal requirements, including court orders issued in litigation involving the Section 1557 regulations.
(HHS: Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972) (May 2021 Notification).)
This notification was set aside by a federal court in November 2022 (see Federal Litigation).
For more information, see Practice Note, June 2020 Final Regulations Under ACA Section 1557: Nondiscrimination in Health Programs and Activities: June 2020 Final Regulations and Discrimination Based on Gender Identity.
The Office of Civil Rights (OCR) of HHS issued guidance in March 2022 stating that:
  • Restricting an individual's ability to receive (or limiting a health provider's ability to provide) gender-affirming care based on an individual's sex assigned at birth or gender identity likely violates Section 1557.
  • Gender dysphoria may qualify as a disability under the ADA, as amended.
  • Preventing qualified individuals from receiving gender-affirming care based on their gender dysphoria, gender dysphoria diagnosis, or perceived gender dysphoria may violate Section 504 and Title II of the ADA.
(HHS: Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy (Mar. 2, 2022) (March 2022 guidance).)
In interpreting ACA Section 1557, the March 2022 Guidance:
  • Indicated that a categorical refusal to provide treatment to individuals based on their gender identity is prohibited discrimination.
  • Viewed Section 1557 as prohibiting federally funded entities from limiting individuals' ability to be provided medically necessary care (including gender-affirming care) from a provider "solely on the basis of their sex assigned at birth or gender identity."
(HHS: Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy (Mar. 2, 2022).)
This guidance was vacated by a federal court in October 2022 (see Federal Litigation).

Federal Litigation

There have been numerous cases about whether gender dysphoria or access to gender-affirming care is protected by nondiscrimination under civil rights laws.
Section 1557 in general and specifically around gender identity have been the topic of significant and ongoing litigation. Both the May 2021 Notification and the March 2022 Guidance were subject to legal challenges in federal courts:
  • The State of Texas sued HHS, seeking to have the March 2022 Guidance declared unlawful and vacated. In October 2022, a Texas district court vacated the guidance addressing gender-affirming care for minors on the grounds that the guidance was arbitrary and capricious and violated the Administrative Procedure Act (see Texas v. EEOC, et. al., 633 F.Supp.3d 824 (N.D. Tex. 2022).)
  • In November 2022, a Texas district court concluded that Section 1557 does not prohibit discrimination based on sexual orientation or gender identity. The court therefore set aside the May 2021 Notification, which took the enforcement position that Section 1557's prohibition "on the basis of sex" includes discrimination on the basis of sexual orientation and gender identity. The court also granted the plaintiffs' request for a declaration that Section 1557 does not prohibit discrimination on account of account of sexual orientation or gender identity. (Neese v. Becerra, (N.D. Tex. Nov. 11, 2022), appeal docketed, No. 23-10078 (5th Cir. Jan. 25, 2023).)
A Maryland district court concluded that a university health system and its hospital subsidiary violated Section 1557 by refusing to allow a patient's hysterectomy to be performed at the hospital because it was for a gender transition. The court concluded that the hospital discriminated on the basis for sex because it allowed patients to obtain medically necessary hysterectomies unless they were for treating gender dysphoria. (Hammons v. Univ. of Md. Med. Sys. Corp., (D. Md. Jan. 6, 2023), appeal docketed, No. 23-1452 (4th Cir. Apr. 26, 2023).)
The Fourth Circuit affirmed district court decisions from North Carolina and West Virginia that held that two states health plans' exclusions for gender-affirming care violated the Equal Protection Clause and Section 1557 (Kadel v. Folwell, (4th Cir. Apr. 29, 2024); see Legal Update, Fourth Circuit: State Health Plan Exclusions for Gender-Affirming Care Violated Equal Protection Clause and ACA Section 1557).
The State of Florida and the Catholic Medical Association sued HHS, challenging the May 2024 final rules under the Administrative Procedure Act and seeking to enjoin HHS from enforcing the final rules (Florida v. HHS, No. 8:24-cv-1080 (M.D. Fla., filed May 6, 2024)).
There also have been legal challenges regarding whether gender dysphoria is protected as a disability. In a case of first impression, the Fourth Circuit found that gender dysphoria does not fall within the Americans with Disabilities Act (ADA)'s exclusion from protection for gender identity disorders that do not result from physical impairments. The court held that gender dysphoria is protected as a disability under the ADA and an individual diagnosed with gender dysphoria may bring a disability discrimination claim. (Williams v. Kincaid, 45 F.4th 759 (4th Cir. 2022).)

Patient Privacy

HHS has also taken action to protect the protected health information (PHI) of people receiving gender-affirming care. OCR issued guidance to address patient privacy related to gender-affirming care under HIPAA.
The March 2022 Guidance reminded HIPAA covered entities (including providers) and business associates that HIPAA permits, but does not require, disclosure of PHI if the disclosure:
  • Is required by another law.
  • Complies with the other law's requirements.
  • Is limited to relevant information.
(HHS: Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy (Mar. 2, 2022).)
This guidance was vacated by a federal court in October 2022 (see Federal Litigation).

Proposed Regulations

HHS proposed regulations in April 2023 addressing reproductive health care under HIPAA that would amend the Privacy Rule (88 Fed. Reg. 23,506 (Apr. 17, 2023)). The proposed regulations would add a definition of reproductive health care that includes care, services, or supplies related to an individual's reproductive health to be interpreted broadly and be inclusive of all types of health care related to an individual's reproductive system (88 Fed. Reg. at 23,527).
The proposed interpretation of reproductive health would include contraceptives (including emergency contraception), pregnancy-related health care, fertility or infertility-related health care, and other care, services, or supplies for diagnosing and treating conditions related to the reproductive system (which includes health care related to reproductive organs, regardless of whether the health care is related to an individual's pregnancy or whether the individual is of reproductive age) (88 Fed. Reg. at 23,527).
The proposed regulations would amend the Privacy Rule to add new categories of prohibited uses and disclosures regarding reproductive health care. Specifically, the proposed regulations would prohibit entities from using or disclosing an individual's PHI to conduct a criminal, civil, or administrative investigation into (or proceeding against) an individual, other persons, or health provider in connection with seeking, obtaining, providing, or facilitating reproductive health care in three situations. The prohibitions would apply to reproductive health care that is:
  • Provided outside the state where the investigation or proceeding is authorized and the health care is lawful in the state in which it was provided.
  • Protected, required, or authorized by federal law (for example, the Emergency Medical Treatment and Labor Act), regardless of the state in which the health care was provided.
  • Provided in the state in which the investigation or proceeding is authorized and is permitted by the law of that state.
(88 Fed. Reg. at 23,528.)
In these three situations, according to HHS, the states lack any substantial interest in seeking the disclosure.
While the proposed regulations do not specifically mention gender-affirming care, Mississippi's attorney general submitted comments (along with 18 other states attorneys general) opposing the proposed rule, saying that it exceeds HHS's statutory authority and stating that any attempt to use the proposed definition of reproductive health care to apply to gender-affirming care would be unlawful (Letter from Lynn Fitch, Mississippi Attorney General, to Xavier Becerra, Secretary of Health and Human Services (June 16, 2023).)

Final Regulations

HHS finalized the regulations addressing reproductive health care under HIPAA in April 2024 (with a June 25, 2024 effective date) (89 Fed. Reg. 32,976 (Apr. 26, 2024)). The final regulations amended the Privacy Rule to prohibit uses and disclosures of PHI for criminal, civil, or administrative investigations or proceedings against individuals or entities for seeking, obtaining, providing, or facilitating reproductive health care that was lawful as provided.
The final regulations added a definition of reproductive health care that is a subset of the term health care. The final regulations define reproductive health care as health care affecting an individual's health in all matters relating to the reproductive system and its functions or processes. In issuing the final regulations, HHS indicated that the definition of reproductive health care is to be interpreted broadly. However, the definition is not to be construed as:
  • Establishing a standard of care.
  • Regulating what is clinically appropriate reproductive health care.
(45 C.F.R. § 160.103 (definitions).)
According to HHS, this does not mean that reproductive health care is limited only to health care that is determined to be appropriate by a health care professional. Instead, an individual may determine whether health care is appropriate (for example, over-the-counter (OTC) contraceptives). In addition, satisfying the definition of reproductive health care is not enough on its own for the health care to be protected under the final regulations. Instead, the information about the health care must still meet the definition of PHI.
HHS provided a non-exhaustive list of what is included in its definition of reproductive health care. This list includes:
  • Contraception (including emergency contraception).
  • Preconception screening and counseling.
  • Managing pregnancy and pregnancy-related conditions (for example, pregnancy screening, prenatal care, miscarriage management, preeclampsia treatment, hypertension during pregnancy, gestational diabetes, molar or ectopic pregnancy, and pregnancy termination).
  • Fertility and infertility diagnosis and treatment, including assisted reproductive technology and its components (for example, in vitro fertilization (IVF)).
  • Diagnosis and treatment of conditions affecting the reproductive system (for example, perimenopause, menopause, endometriosis, adenomyosis).
  • Other types of care, services, and supplies used for diagnosing and treating conditions related to the reproductive system (for example, mammography, pregnancy-related nutrition services, and postpartum care products).
(89 Fed. Reg. at 33,006.)
The final regulations amended the Privacy Rule to add new categories of prohibited uses and disclosures regarding reproductive health care. Subject to a rule of applicability and presumption of lawfulness, the final regulations prohibit covered entities and business associates from using or disclosing PHI for any of the following three non-health care activities:
  • To conduct a criminal, civil, or administrative investigation into any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care (First Prohibition).
  • To impose criminal, civil, or administrative liability on any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care (Second Prohibition).
  • To identify any person for any purpose described in the First Prohibition or Second Prohibition (Third Prohibition).
(45 C.F.R. § 164.502(a)(5)(iii)(A).)
The final regulations do not specifically mention gender- affirming care.
For more information on the final regulations, see Practice Note, HIPAA Privacy Rule: Reproductive Health Care.

State Requirements

Each state determines the legality and conditions of gender-affirming care. Providers must be aware of the laws regarding gender-affirming care services in the states where:
  • They practice.
  • Their patients live.
  • They provide care.
Before performing gender-affirming care, providers should consider state laws that:
  • Criminalize gender-affirming care, including:
    • which services can be prosecuted (for example, surgeries, drugs, or hormone treatments);
    • the minimum age that a person may obtain gender-affirming care (for example, minors);
    • what acts can be prosecuted (for example, performing or aiding and abetting); and
    • if there are situations or cases that are not included in the ban.
  • Create civil liabilities for providers providing gender-affirming care.
  • Impose licensing disciplinary actions or fines for performing gender-affirming care.
  • Impact malpractice insurance for performing gender-affirming care.
Many state requirements changed rapidly as states quickly enacted new laws:
  • Limiting access to gender-affirming care (especially for minors) and creating penalties for providers and others that may assist with gender-affirming care.
  • To protect parties against possible out-of-state investigations if they participate in gender-affirming care that is lawful in the state but unlawful in the other state.
Some of these laws are being challenged in state or federal courts.
For more information on state laws and regulations about the legality of gender-affirming care (including legal challenges), provider protections and penalties, payment requirements and restrictions, and requirements regarding gender-affirming care, see Quick Compare Chart State Gender-Affirming Care Laws.

Access to Gender-Affirming Care

Many states have enacted laws relating to access to gender-affirming care. Most of the laws affect minors' access to gender-affirming surgeries, hormones, and drugs (see Minors).
Some states enacted laws and other provisions providing protections and rights to individuals obtaining gender-affirming care. For example:
  • Massachusetts enacted a law stating that access to gender-affirming care is a constitutional right (M.G.L. c. 12, § 11l½(b)).
  • New Mexico enacted a law prohibiting the use of a legal action in another state to deter, prevent, sanction, or penalize an individual or entity for engaging in a protected health care activity. A protected health care activity is seeking, providing, or receiving (or assisting in seeking, providing, or receiving) reproductive or gender-affirming health care. (NMSA 1978, §§ 24-35-2 and 24-35-5.)
  • Vermont enacted a law stating that access to gender-affirming care is a legal right in the state (12 V.S.A. § 7302).
Other states have enacted additional requirements for the provision of gender-affirming care for to adults. For example, Florida, in addition to banning gender-affirming drugs, hormones, and medical procedures for individuals younger than 18 (with exceptions), requires physicians to obtain written informed consent from patients 18 years and older receiving gender-affirming drugs, hormones, or medical procedures (§ 456.52, Fla. Stat).

Minors

Most states that restrict gender-affirming care limit the restrictions to individuals under a specific age. For example:
Exceptions to these restrictions generally include, but are not limited to:
  • Minors with disorders relating to sex development.
  • Treatments an infection, injury, disease, or disorder caused or exacerbated by gender transition procedures.
  • A physical disorder, injury, or illness certified by a physician and has the minor in imminent danger of death or impairment of a major bodily function.
(Ala. Code §§ 26-26-4, 26-26-3 and 43-8-1(18); S.F. 538, Iowa 90th Gen. Assemb. 2023 Reg. Sess. (March 22, 2023); Iowa Code Ann. § 147.164; Idaho Code §§ 18-1506C and 19-5307 (currently enjoined pending appeal, see Poe v. Labrador, Case No. 24-142 (9th Cir. Jan. 30, 2024)).)
Other states have enacted laws providing protections and rights to minors obtaining gender affirming care. For example:

Definition of Sex

Some states enacted laws defining sex and similar terms as the individual's sex that was assigned at birth. This includes:

Provider Penalties

All providers should be aware of the possible penalties and licensing effects as determined by each state, as well as the implications for providing gender-affirming care services to patients from states where the services are restricted.

Civil and Criminal

Some states have now criminalized providing gender-affirming care services depending on the patient's age and service. Providers may face felonies or misdemeanors, in addition to fines and other penalties, for providing or aiding and abetting another health care practitioner in providing gender-affirming care. For example, in:
  • Alabama, a person engaging in or causes certain gender-affirming procedures to be performed on an individual younger than 19 years old faces Class C felony charges (Ala. Code §§ 26-26-4, 26-26-3 and 43-8-1(18)).
  • Georgia, a health care practitioner or physician providing gender-affirming related drug, hormone, or surgical treatments for individuals younger than 18 years old may face administrative penalties, including revocation of the practitioner or physician's permit or license (O.C.G.A. §§ 31-7-3.5 and 43-34-15).
  • Idaho, effective January 1, 2024, a health care practitioner providing gender-affirming puberty blockers, hormone therapies and transition-related surgeries to an individual younger than 18 years old may face:
    • felony charges punishable by imprisonment for up to ten years; and
    • a fine of up to $5,000
    (Idaho Code §§ 18-1506C and 19-5307 (currently enjoined pending appeal, see Poe v. Labrador, Case No. 24-142 (9th Cir. Jan. 30, 2024)).)
  • Tennessee, a health care practitioner performing gender-affirming surgical procedures or the administering, prescribing, or dispensing of a gender-affirming drug or device to an individual younger than 18 years old may face:
    • licensing sanctions;
    • a civil action by the individual, their parents, or their next of kin; and
    • a civil action by the Tennessee Attorney General, which may result in disgorgement of profits from the medical procedure and a civil fine of $25,000 per violation.
    (T.C.A. §§ 68-33-105 to 68-33-107.)
    In November 2023, three families of transgender minors and a health care practitioner, and the U.S. Department of Justice filed separate writs of certiorari. The writs ask the U.S. Supreme Court to hear the cases and rule on whether Tennessee's restrictions on gender-affirming care violate the Fourteenth Amendment. (L.W. v. Skrmetti, Case No. _____ (U.S. filed Nov. 1, 2023); United States v. Skrmetti, No. __________ (U.S. filed Nov. 6, 2023).)
  • Texas, a health care practitioner providing gender-affirming drugs, hormones, and surgeries to an individual younger than 18 years old may face:
  • Oklahoma, a health care practitioner knowingly providing gender-affirming drug, hormone, and surgical procedures and treatments for individuals younger than 18 years old may face:
    • disciplinary action for unprofessional conduct (Okla. Stat. tit. 59, §§ 509, 519.12, 567.8, and 637; Okla. Admin. Code § 435:15-5-11);
    • felony charges;
    • a civil action by the parent, legal guardian, or next friend of the minor for compensatory and punitive damages, injunctive and other appropriate relief, court costs, and attorneys' fees;
    • a civil action by the minor obtaining drug, hormone, or surgical procedures or treatments for compensatory and punitive damages, injunctive and other appropriate relief, court costs, and attorneys' fees; and
    • an action from the Office of the Oklahoma Attorney General.
    (Okla. Stat. tit. 63, § 2607.1.)

Licensing Effect and Other Concerns

Providers should consider if they have licenses in multiple states and one of those states criminalizes providers or other individuals assisting a patient in obtaining gender-affirming care in a state where providing gender-affirming care is legal. For example, Indiana prohibits health care practitioners from knowingly providing gender-affirming related medical or surgical services to individuals younger than 18 years old and from aiding or abetting another health care practitioner in providing gender transition procedures (Ind. Code 25-1-22-1 to 25-1-22-18).
The licensing agency in the state where gender-affirming care is restricted may pursue disciplinary charges against a provider providing gender-affirming care in a state where the provider is licensed and gender-affirming care is legal. The investigation may also spread to other states where the provider is licensed as certain state licensing laws allow or require a state licensing agency to automatically initiate disciplinary proceedings if there is a disciplinary action taken against the provider by another state licensing agency. These licensing actions may then have an effect on a provider's Medicare or Medicaid enrollment.
States where gender-affirming care is restricted may also try to enact penalties or licensing repercussions against providers assisting a patient in obtaining access to gender-affirming care in another state. There are likely to be legal challenges to that legislation, but some states seem to be considering enacting these types of bans.
Providers may also find that their malpractice insurance does not cover certain gender-affirming services in states that restrict the provision of gender-affirming care.
For more information on state physician licensing requirements, see Physician Licensing Requirements Chart.

Provider Protections

Some states have taken steps to protect providers of gender-affirming care services, for example, in:
  • California:
    • state courts and attorneys cannot honor subpoenas based on a violation of another state's laws that interfere with a person's right to allow a child to get gender-affirming care (Cal Civ. Proc. Code §§ 2029.300 and 2029.350); and
    • law enforcement agencies cannot knowingly make or participate in the arrest or extradition of an individual under an out-of-state arrest warrant based on another state's law against providing, receiving, or allowing a child to receive gender-affirming health care (including mental health care) in California (Cal. Penal Code § 819).
  • Maryland:
    • Maryland state agencies must take whatever actions necessary to the fullest extent within their authority to protect individuals and entities in Maryland that are involved in gender-affirming care; and
    • Maryland health care practitioner licensing boards cannot take adverse action against an individual because they participated in gender-affirming care that is authorized in Maryland.
    (Md. Exec. Order No. 01.01.2023.08 (June 5, 2023).)
  • Massachusetts, a party cannot deter, prevent, sanction, or punish a person engaging in legally protected health care activity by filing or prosecuting an action not in Massachusetts where liability is based on legally protected health care activity in Massachusetts or attempt to enforce an out-of-state order or judgment where liability is based on legally protected health care activity in Massachusetts. Legally protected health care activity is the exercise, enjoyment, aiding, or encouragement (or attempt to exercise, enjoy, aid, or encourage) by a person to reproductive health care services or gender-affirming health care services that is legal in Massachusetts. (M.G.L. c. 12, § 11l½(b).)
  • Oregon:
    • malpractice insurers cannot take adverse action against a health care practitioner for participating in gender-affirming care services;
    • health care practitioners may participate in the state address confidentiality program (Or. Rev. Stat. §§ 192.820, 192.822, and 192.826); and
    • Oregon courts cannot issue a subpoena relating to gender-affirming care services that are lawful in Oregon but unlawful in another jurisdiction.
    (H.B. 2002, Or. 82nd Leg. Assemb. 2023 Reg. Sess. (July 13, 2023).)
  • Washington, which provides protections for health care practitioners, their affiliates, and their families providing, assisting, or attempting to provide or assist, gender-affirming care that is lawful in Washington (RCW 7.115.010 to 7.115.901).
For more information on state laws and regulations governing gender-affirming health care summarizing which states protect or prohibit access to that care (including legal challenges), limitations on providing those services (for example to minors), payment requirements and restrictions, and penalties for providing gender-affirming health care services, see Quick Compare Chart State Gender-Affirming Care Laws.

Telehealth

During the COVID-19 public health emergency, many states temporarily lifted restrictions or expanded where providers may be located to provide telehealth services in the state. Providers must be licensed in the state where the patient is located when providing telehealth services. As state waivers expired, many providers have expanded where they are licensed to continue to provide telehealth in states where they have patients but where they are not located.
Providers should be aware of the laws in the state where they provide care about whether:
  • It is legal to provide gender-affirming care.
  • Non-physician practitioners can provide gender-affirming care.
  • Some gender-affirming care can be prescribed by telehealth, so providers must consider:
    • the location of the patient because the state law where the patient is located governs; and
    • whether the state where they are licensed has applicable requirements or prohibitions on out-of-state providers writing prescriptions.
For more information on telehealth, see Practice Note, Telehealth: Overview and State Telehealth Requirements for Private Payors Chart.

Implications for Health Care Providers

Health care providers must understand how the challenging legal environment affects how they can provide care to their patients and other disparate effects the state bans or protections are likely to have on their practices, including:
  • What gender-affirming care services can be provided and to which patients.
  • What advice and counseling can be offered to patients.
  • How to manage potential increases in out-of-state patients.
  • Providing follow-up care for mismanaged care.
Providers must keep updated on all federal and state requirements (especially as there are continuing rapid changes and ongoing legal challenges to existing requirements) and implement compliant changes to their practices as well as to policies and procedures. Providers must also anticipate changes in their relationship with patients and how they can provide gender-affirming care.
Counsel for health care providers should evaluate the risk for providers located in states with and without bans with a patient in a state with a ban to take certain actions, including:
  • Informing the patient about options to access gender-affirming care.
  • Providing logistical support or financial assistance to the patient to travel out of state for that care.
  • Providing in-person or telehealth clinical services (before or after) a patient travels out of state for that care.