Regulation of Gender Affirming Health Care Was A Major Trend in the 2023 Legislative Sessions

This article is part of our latest series: Major Issue Trends in 2023: State Legislative Recap. In this series, our experts examine the high-level legislative trends they saw in the 2023 state sessions. In addition to discussing the most prevalent issues considered by state policymakers, they explore some of the more surprising emerging trends we noticed, plus what to expect in 2024 for many of these policy areas. The series will be released during November and December, with new articles each week. Explore the full series here, and be sure to sign up for our email list so you don’t miss out on any articles (check the “Blog Posts” box).

An emergent issue in this space this year was gender-affirming care, referring to any treatment intended to change a person’s body to be more in alignment with their gender identity. Bills addressing gender-affirming treatments were debated in a majority of state legislatures. By far, the most commonly addressed aspect of gender-affirming treatment bills was the legality of performing procedures or prescribing treatments for minors. At least nineteen states enacted legislation either banning or significantly restricting these types of procedures or treatments in children under the age of 18. 

Nebraska went even further by extending its restrictions to anyone under the age of nineteen. A few states, like Missouri and Tennessee, included grandfather clauses within their bills that permit treatments that begin prior to a specific date to continue. 

While the vast majority of legislation skewed towards restricting gender-affirming treatment, several states enacted laws to make these treatments easier to access. Maryland and Maine, for example, both passed laws requiring that their public health care assistance programs provide coverage for these treatments, and Nevada imposed this same requirement on all insurers, private, and public.

Challenges to the newest restrictions are already making their way into the court system. Courts in Indiana, Florida, and Arkansas have all instituted temporary injunctions against the laws. In Texas and Missouri, however, courts ruled against opponents, permitting the laws to take effect. These novel cases, and those like them across the country, are destined for a hearing before the U.S. Supreme Court.

Additionally, the variation between states’ treatment of gender-affirming care sets the stage for some substantial jurisdictional clashes in the future. Already, in the 2023 legislative session, Florida enacted a bill to grant state courts emergency jurisdiction over a child in the state if they are “being subjected to or threatened” with sex reassignment. Alternatively, Oregon, New York, and Minnesota passed bills limiting the legal reach of other states when attempting to interfere with gender dysphoria/affirming care. These types of bills are sure to increase in 2024 as the impact of the 2023 legislation prohibiting treatments takes effect.