Williams Institute Study on "Legal Penalties for Physicians Providing Gender-Affirming Care"

By 2022, approximately half of US states had implemented protective state-level health policies related to gender-affirming care coverage in private and public insurance. However, despite consensus between professional medical associations regarding gender-affirming standards of care, bans on this care, particularly for minors, have gained legislative traction within the past 5 years.* * * 118 bills have been proposed [in 2023]  across 31 states related to restricting access to gender-affirming care. By April 2023, 11 of these bills had been passed into law (in Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Mississippi, South Dakota, Tennessee, Utah, and West Virginia) and 1 administrative rule was enacted in Florida. Thus, in total, 15 states have laws and policies that ban gender-affirming care for minors. Within the stipulations of state bans, physicians who continue care face 4 major direct penalties: (1) medical license disciplinary action; (2) a private right of legal action against physicians, which can include extensions on malpractice statutes of limitations; (3) civil legal action the state can take against physicians; and (4) felony provisions that enable criminal penalties against physicians.

The publication particularly emphasizes the legal and professional risks that providers face in these states, including five states that enacted private rights of action in their laws and three that have criminalized such care. 

Many of these states’ laws deem the practice of providing gender-affirming care for minors as “unprofessional conduct.” The laws in Arizona, Arkansas, Georgia, Indiana, Iowa, Tennessee, Utah, and West Virginia hold that physicians are subject to discipline by the appropriate review board. The enacted laws in Kentucky, Mississippi, and South Dakota further state that physicians who violate these laws will have their license to practice medicine revoked by the state medical board.

 

Laws in 8 states (Arizona, Arkansas, Indiana, Iowa, Mississippi, South Dakota, Tennessee, and Utah) provide a private right of legal action, allowing citizens to bring lawsuits against physicians for providing gender-affirming care. In addition, these states extend medical malpractice statutes of limitations for claims related to providing gender-affirming care for minors. Some states allow malpractice action against a physician until the patient is 25 years old (South Dakota and Utah) and other states allow lawsuits to be filed from 10 to 30 years after the patient reaches 18 years of age (Arizona, Arkansas, Indiana, Iowa, Kentucky, Mississippi, and Tennessee).

The effects of this legal landscape are quite staggering on the medical profession, including “delegitimizing informed consent and amending the very definitions of ‘the practice of medicine.’”