State Focus on Gender Affirmation Intensifies

Policy around transgender care has recently gained considerable attention amid a growing trend of legislation carrying serious professional, financial or criminal penalties for the provision of gender affirmation care. Conversely, although less extensively, efforts to expand coverage for transgender services among both public and third-party payer programs are also taking place.

This period of focused conversation centered on transgender care has been marked by both significant challenges and notable gains in the fight for full access to medically necessary affirming health care.

Background

Gender affirmation is a developing field of medical and surgical practice in which plastic surgeons play a pivotal role, leading the field in many of the physical transformative procedures often involved in gender affirmation.

Like many conditions, gender dysphoria and the process of gender affirmation requires a multidisciplinary approach. Physical, psychological and psychosocial treatment are all components of the gender affirmation process. These components of care – and particularly psychological assessment of gender dysphoria – often begin in childhood and early adolescence. Legislation that seeks to criminalize gender therapy targets this part of the care continuum.

A growing legislative trend

State legislation designed to criminalize gender affirming care first emerged in 2016. The frequency of such bills increased in the years that followed, but 2020 was a particularly active year, seeing six states with bills introduced on the issue. The volume and intent of the legislation between 2016 and 2020 resulted in transgender advocacy groups classifying the bills as "hostile." Last year was also notable because it marked the first instance in which one of the aforementioned bills successfully passed a state legislative chamber.

In 2020, the South Dakota House of Representatives passed legislation prohibiting gender-affirming care for minors and leveling serious consequences for physicians found in violation of the law, including possible jail time. The state's Senate ultimately defeated the bill and prevented it from being enacted into law, but the relative success of the legislation was concerning and may have inspired a number of similar bills that would soon follow.

Less than three months into 2021, 11 pieces of legislation attempting to criminalize gender affirmation therapies have been introduced in 10 states. Alabama, Indiana, Iowa, Mississippi, Missouri, Montana, New Hampshire, Oklahoma, Texas and Utah have each introduced bills seeking to regulate the practice of medicine by banning certain procedures for minors and criminalizing the actions of health care providers who elect to administer gender affirmation care.

While the legislative concepts vary by state, the common threads include a prohibition of gender affirmation care for minors, identification of specific procedures and therapies that cannot be performed by the state's health care practitioners and a stipulation that it is illegal for a minor's parents or guardians to consent to the procedures. Penalties for health care providers, guardians and even school counselors found in violation of the laws vary widely and range from a fine of up to $500,000, to notifying child protective services and even classification of the guilty party as a felon.

Efforts to expand coverage

Contrary to the disturbing trend of legislation looking so severely at limiting gender-affirming care that it seeks to make criminals out of some of those involved, concerted efforts are also underway to expand coverage for the transgender community.

In one notable example, Aetna announced in January the expansion of its coverage for gender-affirming surgeries for transgender women. The insurer now covers gender-affirming breast augmentation in most plans, bringing coverage for the procedure into alignment with coverage for other surgeries common in transgender patients, such as breast removal or gender-reassignment.

Additionally, several states have worked to expand gender affirmation coverage. On February 12, ASPS wrote a letter in support of an emergency rule from the Wisconsin Department of Health Services that would repeal current restrictions and expand coverage for transgender Medicaid members. Similar amendments were proposed to the Washington Administrative Code and received the support of the Society via public comment in late January after ASPS involvement in the development of the policy that dates back to 2018.

ASPS involvement

ASPS firmly believes that plastic surgery services can help gender dysphoria patients align their bodies with whom they know themselves to be and improve their overall mental health and well-being. In 2021, the Society has actively opposed legislation seeking to criminalize actions by physicians and guardians when minors receive gender affirmation surgery in Missouri, Montana and Alabama and is readying engagement in other states where the issue has emerged. ASPS will continue its efforts to advocate across state legislatures for full access to medically necessary transition care.