How State Bans on Gender-Affirming Care Affect Mental Health Practitioners

Numerous states across the U.S. are actively considering new legislation to restrict gender-affirming health care, also called affirmative care. And nearly 20 states have already passed laws restricting gender-affirming health care for people under age 18.

Much of the discussion of these bills has centered on affirmative medical care for children and adolescents, such as gender-affirming hormone therapy. 

However, some of the proposed bills have much broader impacts throughout health care. Some limit health care providers’ ability to treat clients in accordance with clients’ gender identities, while others seek to limit affirmative care more generally. 

Among the most punitive proposed legislation are new liabilities for healthcare providers who continue to offer affirmative care. 

Here’s what therapists and mental health practitioners need to know.

States Restricting Affirmative Care

According to ABC News, as of May 2023, at least 18 states have already passed laws restricting gender-affirming health care for minors. These states include Alabama, Arkansas, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Dakota, Tennessee and Utah. 

In addition, at least 14 other states are considering banning or restricting affirmative care.

The Human Rights Campaign, an LGBTQ advocacy group, publishes weekly updates to an interactive map of states with bills targeting gender-affirming health care among U.S. youth.

On the other side of the political spectrum, a handful of states, including Alaska, California, Illinois, and Minnesota, have moved in the opposite direction, passing laws to protect gender-affirming care for minors.

Defining Affirmative Care

As it relates to medical care, affirmative care typically refers to hormone treatment, puberty blockers, and surgical interventions that allow someone’s body and outward appearance to more closely align with their gender identity. 

Puberty blockers are typically reversible, hormone treatment is somewhat reversible, and surgical interventions are typically not reversible. That said, surgical interventions are extremely rare for minors. In fact, according to a Washington Post FAQ on transgender children, “current medical guidelines say children should not undergo gender-affirming genital surgery before they turn 18.” The exception is chest surgery (also known as “top surgery”), which can be performed on transgender teenagers before age 18.

While the U.S. does not keep official statistics on how many minors receive gender-affirming top surgeries each year, research for a 2022 New York Times article found that eleven leading pediatric gender clinics in the U.S said they carried out a total of 203 procedures on minors in 2021. As the Times reporter pointed out, adolescent top surgeries were less frequent than cosmetic breast procedures performed on non-transgender teens, such as breast implants and breast reductions, which numbered around 8,000 annually.

Several small studies have found that gender-affirming medical care may reduce depression and suicidality in trans and nonbinary youth. For example, a 2022 study of 104 transgender and non-binary youths ages 13-20 years, found that those youths who had received gender-affirming care, including puberty blockers and gender-affirming hormone therapy, had 60% lower odds of moderate or severe depression and 73% lower odds of suicidality after 12 months, as compared with transgender and non-binary youth who had not received gender-affirming care.

While some youth who begin gender-affirming treatments discontinue it, such “detransitioning” is rare. In a current longitudinal study of 317 transgender youth discussed in a 2022 article in the journal Pediatrics only 2.5% of study participants who had begun gender-affirming medical treatment had returned to their cisgender identity within 5 years.

As it relates to mental health care, “affirmative care” can refer to a wide range of interventions that aim to affirm a client’s identity. One challenge in interpreting some state laws comes when affirmative care itself is minimally defined or defined in a way that would appear to capture and prohibit this broader practice of mental health care.

For example, in Texas, Senate Bill 1029 defined a “gender modification procedure or treatment” as including any “health care procedure or treatment provided for the purpose of… affirming the patient’s perception of the patient’s sex if that perception is inconsistent with the patient’s sex.” 

Mental health care that supports or even recognizes a client’s gender identity would potentially be prohibited by this language. That bill would also create an ongoing responsibility for any provider offering affirmative care to pay for the costs of any required follow-up treatment, for the rest of the client’s life. 

SB1029 was left pending in committee and is unlikely to become law. Texas Senate Bill 14, which is more narrowly written, to address medical and surgical transitioning for youth, appears much more likely to pass.

Direct Impacts on Mental Health Care

While the bans in place and the bills under consideration vary in scope, there are some common themes. 

These bills generally seek to prohibit health care providers from offering hormone treatment, puberty blockers, or gender-affirming surgery to minors. Further, they generally seek to prohibit the use of state money for such procedures for minors or adults. In some cases, such as Oklahoma’s House Bill 2177, they also would prohibit private insurance from covering gender-affirming medical treatments for adults and youth.

At present, many states and insurers require clients and patients seeking gender-affirming medical procedures to obtain letters of support from mental health professionals in order to demonstrate eligibility to receive gender-affirming care.

Therapists and mental health practitioners also commonly offer supportive mental health care before, throughout, and after clients’ medical treatments. If the states with more narrowly-written proposals were to adopt them without amendment, therapists would be largely prohibited from recommending medical interventions or treatment.

What’s more, if the states considering broader restrictions were to pass them, therapists could find their work with trans and nonbinary clients meaningfully limited. Since social affirmation, including the use of pronouns conforming with the client’s identity, is considered an element of affirmative care, a state that bans affirmative care without more clearly defining the terminology could limit therapists’ ability to even provide clients this most basic level of acceptance and support.

Some state proposals, such as Ohio House Bill 68, aim to make “aiding and abetting” gender-affirming medical care for minors a crime. This bill, and others imposing punitive measures, are the most likely to directly impact mental health care for trans and nonbinary clients. Mental health practitioners fearing criminal penalties may be unwilling to assist minors in accessing resources or obtaining referrals for gender-affirming care.

Such restrictions on gender-affirming therapy seem likely to provoke legal challenges in any states that adopt sweeping bans, like Ohio’s “aiding and abetting” clause. 

Infringing on mental health practitioners’ free speech is a concern with such legislation. 

In most cases, bills undergo a series of amendments prior to becoming law to ensure the adoption of broadly defined legislation doesn’t infringe on existing legal rights. 

That said, even if a bill is signed into law with the narrower language, court challenges to affirmative-care bans can still argue that restricting medical care and practice for one population violates patients’ or providers’ civil rights. Federal courts have already blocked the enforcement of affirmative-care bans in Alabama and Arkansas.

Indirect Impacts on Mental Health Care

Another area where therapists and mental health practitioners may be impacted is in their ability to address and support the concerns that trans and nonbinary clients bring to therapy. 

A significant body of research shows that gender-affirming care tends to improve the health and well-being of those who seek it. For example, a large cross-sectional study of the responses of 20,000 U.S. transgender adults ages 18-36 from the 2015 U.S. Transgender Survey found that those survey respondents who had taken puberty blockers were less likely to experience suicidal ideation over the course of their lives than those who had not had access to puberty blockers. 

If affirmative care is restricted or prohibited in specific states, trans and nonbinary individuals in those states are likely to experience higher levels of mental health issues—including depression and suicidality. 

When state bills restrict insurance coverage for gender-affirming care, that care may become less accessible. 

Finally, if states introduce new legal liabilities to mental health practitioners who offer gender-affirming care, practitioners may end up opting out of providing such care to clients even on a cash basis. 

The U.S. public appears relatively divided when it comes to what, if any, types of gender-affirming care should be available to minors. 

Some policymakers believe restricting gender-affirming care will be popular among their constituents despite the negative effects on youth mental health that may result.

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