Gender-affirming care bans expanding, access being cut: U.S. laws now targeting transgender adults

Within the last few years, hundreds of bills have been introduced in the U.S. with the aim of stripping away, restricting, or even criminalizing gender-affirming care for transgender youth under 18 years of age, with proponents arguing that minors are too young to make these medical decisions.

But in 2023, legislative attempts to strip trans people of health-care options have expanded their reach to a new age group: adults.

In the past three months, at least five U.S. states have proposed bills that would limit gender-affirming care for adults either through direct bans or by barring medical facilities and Medicaid from covering this care.

Two states — South Carolina and Texas — are considering bills that would ban all gender-affirming care for those under the age of 26, modelled after an Oklahoma bill introduced in January, though the age in that bill has since been lowered to 18 after backlash. Kansas is considering banning gender-affirming care for people up to age 21.

“This is going against every idea of freedom and opportunity in this country,” Vivian Topping, director of advocacy and civic engagement at the Equality Federation, told CTVNews.ca in a phone interview.

Gender-affirming care is medically necessary, evidence-based care that allows trans and gender diverse people to transition to the gender that matches their lived experience, according to the leading medical organizations in the U.S., including the American Medical Association and the American Academy of Pediatrics, which have condemned legislative attacks on this care.

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Arguments in favour of banning care for trans people are largely made by conservative lawmakers, who believe they are protecting children and that minors cannot consent to medical care that could include irreversible changes.

Last year, as Alabama governor Kay Ivey signed a gender-affirming care ban for minors, in 2022 saying she said, “We’re going to go by how God made us: if the Good Lord made you a boy, you’re a boy, and if he made you a girl, you’re a girl. It’s simple.”

Opponents of the legislation say that banning care for trans people at any age is dangerous, but suggesting trans adults shouldn’t be allowed to make their own decisions about their bodies is a jump in rhetoric.

“We expect that folks have the right to live our lives how we see fit as long as we aren't hurting anybody,” Topping said. “Deciding what people can do with their bodies … try(ing) to obfuscate as much as we can about access to gender-affirming care, it’s just a continued attempt to erase and attack people who are marginalized.”

It’s the latest step in a strategy that advocates say began with sporadic bills banning trans people from using bathrooms or playing on sports teams that align with their gender identity, and has now snowballed into hundreds of bills ranging from anti-trans health-care bans to those barring any mention of LGBTQ2S+ identities in school curriculums, to bills threatening to separate trans children from affirming parents.

“We have to understand the discussion around trans youth as a vector into the wider conversation and the goal to disrupt and limit trans rights overall,” Imara Jones told CTVNews.ca in a phone interview. Jones is the founder and CEO of TransLashMedia, runs a podcast about trans lives and topics in the U.S., and has produced a related docuseries.

“The expansion of these bills into adults … makes total sense when you understand that that was the strategy all along.”

Some of the most vocal proponents of bans on gender-affirming care have openly stated that the focus on youth was to open the door to further attacks on trans rights and health care. Terry Schilling, president of the conservative American Principles Project, which lobbies and runs ads for Republican candidates, told the New York Times in January that their ultimate goal was to eliminate all transition care, and that focusing on minors was just “going where the consensus was.”

The American Civil Liberties Union is currently tracking 431 anti-LGBTQ2S+ bills that are on the table for the 2023 legislative session in the U.S.

More than 115 of those bills pertain directly to health care for trans people -- largely seeking to ban or restrict access to gender-affirming care.

Gender-affirming care can include puberty blockers, hormone treatments and surgical interventions, depending on the age of the patient and their individual goals. Studies have shown that depression, anxiety and suicidality are significantly reduced in trans people when they are able to access gender-affirming care.

Since the start of 2023, seven states have prohibited gender-affirming care for those under 18 years of age through bills or medical board rules: Mississippi, South Dakota, Tennessee, Utah, Florida, Georgia and Iowa.

No laws that include adults in an outright ban on gender-affirming care have been passed at this stage.

Under Texas' and South Carolina’s proposed bans, it would be a felony for a health-care provider to even refer a patient under the age of 26 for gender-affirming care. Health-care providers could be criminally prosecuted for providing this care up to 40 years after the patient underwent treatment.

In practice, this would mean that while a cisgender 23-year-old could get a nose job or a breast augmentation without legal repercussions, a transgender 23-year-old in the same state would be barred from accessing similar procedures purely due to them being related to a gender transition.

“It is all just discrimination,” Topping said.

Oklahoma Sen. David Bullard stated in a January press release that 26 was chosen as the initial age cutoff for the state's gender-affirming care ban “to account for scientific findings that the brain does not fully develop and mature until the mid- to late 20s”. No other laws in the U.S. use this theory, which some experts say is often misinterpreted, to rescind health care from legal adults. Oklahoma lowered the age cutoff to 18 after a wave of protests in February at the Oklahoma Capitol, according to the Washington Examiner.

Topping is concerned that even if bills banning health care for adults don’t pass into law, their existence could make health-care bans for minors seem less extreme.

“It's them trying … to make the idea of banning best-practice medical care from transgender youth a normal idea,” she said. “And they're doing that by introducing the bigger, broader ban (that) makes their bans for youth seem moderate and normal.

“The important thing to remember is that no matter what age range these bills are targeting, they are attacking best-practice medical care, and they are unnecessary.”

ELIMINATING CARE BY ELIMINATING COVERAGE

No less dangerous to trans people, according to advocates, is the sharp rise in bills seeking to limit the capability of adults to access gender-affirming care by removing funding and coverage.

The Texas Senate has introduced a bill that would ban public funding for all gender-affirming care, ban some health plans including Medicaid from covering any gender-affirming care, and make a health benefit plan issuer liable for a patients’ gender-affirming care in perpetuity.

Essentially, it would not only vastly limit health-care coverage, but would spook potential providers away from offering gender-affirming care by making them liable for decades, and making it impossible to receive malpractice insurance.

Similar bills are being considered in other states.

A month ago, while discussing a separate Tennessee bill banning gender-affirming care for minors, Republican State Sen. Jack Johnson said that he wanted to “put children first … and let them make those decisions as adults.”

But Johnson is also backing HB1215, which would prohibit Tennessee’s Medicaid program from covering gender-affirming care, shutting off access to trans adults who cannot afford to access private care.

A bill being considered in Florida includes a ban on gender-affirming care for youth, would prevent birth certificates being updated to reflect transition, allows courts to take custody away from a parent who affirms their trans child, and bans both public funds and private insurance being used for gender-affirming care for adults.  

Florida is also currently considering Bill SB952, the “Reverse Woke Act,” which would place excessive liability on employers if they cover gender-affirming care.

An Oklahoma bill called HB2177, which passed in the Oklahoma House at the end of February and now is in the Oklahoma Senate, bans facilities that receive public funds from allowing staff or facilities to be used for the provision of gender-affirming care “on any minor or adult.”

This would make it nearly impossible to find a provider, as all hospital systems receive public funds.

Oklahoma already limited access in 2022 when it withheld millions in COVID-19 relief funds from the University of Oklahoma medical system until the system agreed to stop providing gender-affirming care.

Others who've backed similar measures include former U.S. president Donald Trump, who promised in a January video that if he was re-elected, he would punish doctors who provide gender-affirming care to minors and would create “a new credentialing body for teachers” in order to “promote positive education about the nuclear family, the roles of mothers and fathers and celebrating, rather than erasing, the things that make men and women different.”

He also added that he would prohibit any federal agency from “promot(ing) the concept of sex and gender transition at any age” — another sign that the anti-trans crusade is expanding far beyond children.

Eliminating care by severing access is straight out of the anti-abortion playbook, advocates including Topping say.

“What they're doing is saying, ‘OK, fine, you won't let us block, ban it completely, we will just make it incredibly hard to access,’” Topping said. “They've done the same thing when it comes to abortion. And the same through line here is that bodily autonomy.”

TRANS REFUGE

Not every state is looking to limit access to care. Many have also increased protections for trans people, or passed bills or executive orders designating them as “trans refuge” states for families and individuals fleeing anti-trans laws elsewhere.

“We now have a situation in the United States where we have political refugees in our country,” Jones said. “I personally know families that have been planning for a year what they're going to do if a bill passes in their state, I know that there are groups of parents as well who have trans kids who cannot afford to leave their states, who are keeping the identity of their children a secret in order to protect them in various places in the United States where they know that there are authorities who wish to do them harm because of their gender identity.”

• Read more: Popular e-petition calling for Canada to allow trans people to claim asylum, but that right is 'already established'

U.S. President Joe Biden denounced Florida legislation targeting trans youth as “close to sinful,” and “cruel” in an appearance on the Daily Show last week, and several senates have seen filibusters recently attempting to protest anti-trans health-care bills.

“I don't think most people are supportive of these bills,” Jones said.

Topping agreed, saying she thinks the vast majority of “folks don't want to ban care that will help someone be the best version of themselves.”

Advocates believe that Texas and South Carolina’s bills banning gender-affirming care for those under the age of 26 are unlikely to pass, but that the escalation is far from over.

“Trans folks are going to continue to speak up,” Topping said.

“At the end of the day, trans folks are your family, they’re your friends, they’re your neighbours and co-workers. And folks just need to remember that.”