Gender-affirming healthcare, encompassing a range of medical and social interventions has gained prominence in recent years, particularly for transgender and gender-diverse individuals. Access to these services, however, remains a contentious issue, with some states restricting access while others uphold protections. As such, healthcare providers must navigate this evolving legal landscape to ensure they comply with relevant regulations.

Key Considerations for Healthcare Providers

1. Federal Actions: 

While federal law lacks explicit protections for gender-affirming care, the Biden administration has taken steps to safeguard access through executive orders and directives barring discrimination based on gender identity.

2. State Requirements: 

Each state determines the legality and conditions of gender-affirming care. Providers should stay abreast of applicable state laws and regulations.

3. Federal Nondiscrimination Protections: 

Section 1557 of the Affordable Care Act prohibits discrimination based on sex, which the Biden administration interprets to include gender identity.

4. Regulatory Actions: 

The federal government has issued regulations under Section 1557, with the Biden administration proposing new rules that would expand protections for gender-affirming care.

5.  Department of Health and Human Services (‘HHS’) Guidance: 

HHS has issued guidance clarifying that restricting access to gender-affirming care likely violates Section 1557 and that gender dysphoria may qualify as a disability under the ADA.

6. Federal Litigation: 

Ongoing legal battles are addressing whether gender dysphoria and access to gender-affirming care are protected under civil rights laws. Providers should monitor the outcomes of these cases.

State Requirements: A Patchwork of Legislation

State requirements for gender-affirming care vary from state to state. Some states have enacted laws that restrict or ban gender-affirming care for minors. Other states have enacted laws that protect providers of gender-affirming care.

Providers of gender-affirming care should be aware of the laws in the states where they practice and where their patients live. They should also be aware of the potential penalties and licensing effects of providing gender-affirming care to patients from states where the services are restricted.

Protections for providers of gender-affirming care are available in some states. These protections can include:

• Laws that prohibit state courts and attorneys from honoring subpoenas based on a violation of another state’s laws that interfere with a person’s right to allow a child to receive gender-affirming care.
• Laws that prohibit law enforcement agencies from knowingly making or participating 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 care (including mental health care).
• Laws that prohibit state health care practitioner licensing boards from taking adverse action against an individual because they participated in gender-affirming care that is authorized in the state.
• Laws that prohibit malpractice insurers from taking adverse action against a health care practitioner for participating in gender-affirming care services.
• Laws that allow health care practitioners to participate in the state’s Address Confidentiality Program, which protects the confidentiality of health care providers’ addresses.
• Laws that prohibit Oregon courts from issuing a subpoena relating to gender-affirming care services that are lawful in Oregon but unlawful in another jurisdiction.

Providers should stay up-to-date on the latest laws and regulations regarding gender-affirming care. They should also consult with an attorney if they have any questions about their legal obligations.

Telehealth in The Mix

Telehealth for gender-affirming care is the use of telecommunications technology to provide gender-affirming care to patients remotely. This can include video conferencing, phone calls, and secure messaging.

Providers of gender-affirming care who use telehealth must be aware of the laws in the state where they provide care. This includes laws about whether it is legal to provide gender-affirming care, whether non-physician practitioners can provide gender-affirming care, and whether there are any restrictions on out-of-state providers writing prescriptions.

Implications for Health Care Providers

Implications for healthcare providers who use telehealth for gender-affirming care include:

• They must understand how the current legal environment affects the care they can provide to their patients.
• They must consider what gender-affirming care services they can provide and to which patients.
• They must consider what advice and counseling they can offer to patients.
• They must consider how to manage potential increases in out-of-state patients.
• They must consider how to provide follow-up care for mismanaged care.
• They must stay updated on all federal and state requirements.
• They must 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 and have a patient in a state with a ban. These providers may need to take certain actions, such as:

• 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.

Conclusion 

In conclusion, navigating gender-affirming health care requires providers to be well-versed in federal and state laws, litigation outcomes, patient privacy regulations, and the nuances of telehealth. By staying informed and adaptable, healthcare providers can ensure they deliver gender-affirming care while navigating the legal intricacies of this evolving landscape.

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