Scope of Gender-Affirming Care Protections

Fourteen states and the District of Columbia protect patients’ access to GAC for minors. The scope of services defined as protected GAC varies slightly by state, however, based on the definition of GAC incorporated in the state’s statute. ³⁸ Most states define GAC broadly to encompass a wide range of services. Massachusetts, for example, defines GAC (using the term “gender-affirming health care services”) as “all supplies, care and services of a medical, behavioral health, mental health, surgical, psychiatric, therapeutic, diagnostic, preventative, rehabilitative or supportive nature relating to the treatment of gender dysphoria.” ³⁹ Other statutes incorporate more detailed types of procedures in defining GAC. Maryland provides the most specific definition, delineating 11 types of services included in GAC, such as hormone therapy, physical alteration procedures, certain laser treatments, and fertility preservation procedures. ⁴⁰ Many statutes also cite the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition and the World Professional Association for Transgender Health in their definitions of gender dysphoria and GAC, directly tying their definitions of GAC to current medical expertise. ⁴¹

Notably, at least 10 states and the District of Columbia not only define what GAC includes but also place it within a statutory category of “legally protected health care activity,” often along with reproductive health care services. ⁴² Statutory protections may apply to this category or specifically to GAC, depending on the state law. In either case, these definitions serve as the basis for the protections laid out for GAC in the following sections. Importantly, while state laws banning or restricting GAC primarily target care given to minors, the definitions and state law provisions are generally broad enough to encompass and protect GAC for patients of all ages. As some states have sought to expand their restrictions of GAC beyond minors, this may become relevant in the future.

Procedural Protections from Out-of-State Investigations

State GAC shield laws implement specific protections for patients and providers, taking into account other state laws restricting or prohibiting GAC. In the event that a patient or provider in a shield state is subject to another state’s investigation related to GAC — whether that care was provided to a traveling patient or via telehealth — many GAC shield laws have provisions to protect individuals from investigation and liability. These laws operate in a few ways.

First, GAC shield laws may protect providers and patients by restricting state government cooperation with out-of-state investigations related to GAC. Twelve states and the District of Columbia prohibit public entities (including state agencies, public employees, and/or law enforcement) from aiding or cooperating with investigations when the GAC subject of the case would be legal in their state. ⁴³ These prohibitions include limiting both information sharing and expending resources to support out-of-state investigations. Eight states (California, Colorado, Maine, Massachusetts, New York, Rhode Island, Vermont, and Washington) provide these protections regardless of the location of the patient receiving GAC. ⁴⁴

Second, 14 states and the District of Columbia prohibit courts from issuing subpoenas in connection with investigations related to liability for GAC. ⁴⁵ Some states, including California, Colorado, and the District of Columbia, may issue subpoenas if there is a sworn statement that the requested information will not be used related to a proceeding on or to impose liability for GAC legal in the protective state. ⁴⁶ Both Massachusetts and Maine include additional provisions regarding electronic communications with providers, prohibiting issuing warrants or subpoenas to these entities and prohibiting these entities from complying with warrants or subpoenas connected to investigations related to GAC legal in their states, except as required by federal law. ⁴⁷

Third, 13 states prohibit the extradition of individuals charged with a crime related to the provision of GAC that would be legal in the protective state. ⁴⁸ Some have exceptions to this protection. For example, Colorado, Massachusetts, New Mexico, Rhode Island, and Vermont will extradite individuals who were physically present in the investigating state when the GAC was provided and then subsequently fled from that state. ⁴⁹

While these procedural protections impede a restrictive state’s ability to gather evidence or physically apprehend an individual in an investigation, they primarily focus on the legal process. Even if a shield state refuses to comply with a subpoena or an extradition request, a restrictive state may still proceed with a trial in absentia or enter a default judgment. To address the outcome of such proceedings, effective shield laws require a second layer of defense: protections against substantive liability. The next section examines those laws shielding individuals and entities from civil or criminal liability arising from the provision of GAC.

Substantive Liability Protections and Judgment Shields

Beyond blocking out-of-state investigations, many shield laws also limit the enforcement of out-of-state civil judgments against providers and patients in the state. In practice, these protections can prevent restrictive states from using courts in shield states to collect damages awarded elsewhere. This would include enforcing money judgments, garnishing wages, or attaching property located in the shield state. Some laws also provide affirmative remedies or procedural barriers that make cross-border enforcement more difficult or uncertain.

For example, many shield laws govern the choice of law and recognition of out-of-state civil actions and judgments related to the provision of GAC. Nine states (California, Colorado, Illinois, Maine, Massachusetts, Oregon, Rhode Island, Washington, and Vermont) require their courts to apply their state’s law in reviewing cases related to GAC, regardless of location of care provision, and prohibit the recognition of out-of-state civil judgments related to the provision of GAC. ⁵⁰ Maryland also bars the enforcement of out-of-state civil judgments related to GAC, except in cases where the underlying actions would also be illegal in Maryland, but lacks the choice-of-law requirement of the other states. ⁵¹ Four states provide specific enforcement protections related to GAC: California, Massachusetts, Minnesota, and New York prohibit courts from applying other states’ laws to authorize the removal of a child from their guardian related to parents or guardians’ permitting the child to receive GAC. ⁵²

If a patient or provider is subject to a lawsuit in a state banning or restricting GAC, they may be held liable for penalties ranging from civil damages to professional discipline to criminal sanctions. However, many shield laws have “clawback provisions” allowing them to recover damages from the parties bringing suit against them in other states. Shield laws in Connecticut, Maine, Massachusetts, New Mexico, Rhode Island, Vermont, Washington, and the District of Columbia include such clawback provisions. ⁵³ California and Colorado have a similar provision, but do not require a judgment to have been brought against the individual in the other state. ⁵⁴

Relatedly, 11 states (California, Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, New York, Oregon, Rhode Island, and Vermont) further protect GAC providers by prohibiting medical malpractice insurance companies from taking adverse actions against them based on the provision of care legal in their state. ⁵⁵ This includes, but is not limited to, prohibiting denying coverage or increasing insurance premiums on the basis of providing GAC.

Together, 13 states and the District of Columbia provide some protection against civil liability related to out-of-state actions under anti-GAC laws. Further, these laws provide affirmative protections for providers, ensuring that courts cannot punish individuals for providing GAC to patients and in effect neutralizing some of the negative impacts of restrictive state laws. In doing so, they provide important safeguards to secure continued access to GAC, in shield states. Yet there exist other potential consequences for violating GAC laws — importantly, professional discipline — which require separate shield law protections.

Professional Discipline

In light of state bans and restrictions, providers of GAC face a twofold risk. First, a provider may face direct disciplinary action in a restrictive state where they hold a license, including sanctions, suspension, or revocation of a provider’s license in that state, or other disciplinary action. ⁵⁶ Second, under licensing reciprocity agreements, a provider’s disciplinary action in a restrictive state may automatically trigger a disciplinary action in a shield state where the provider is also licensed, threatening their ability to continue providing care. ⁵⁷ With some states aggressively pursuing out-of-state telehealth providers, the potential risk to health care professionals’ licenses has become increasingly apparent.

Shield laws have mitigated these risks by protecting GAC providers from disciplinary action. Thirteen states and the District of Columbia prohibit state medical boards or other health care profession licensing boards from taking action against an individual based on their provision of GAC that is legal in their state. ⁵⁸ Eleven state laws provide protections to both license holders and applicants, while Maine, Massachusetts, and the District of Columbia laws only protect license holders from adverse actions. Most state laws apply broadly to professional boards, licensing bodies, or regulators, but two states apply to specific professions. Illinois protects the licenses of “physicians, nurses, pharmacists, behavior analysts, clinical psychologists, clinical social workers, family therapists, clinical counselors, surgical assistants and technologists, genetic counselors, midwives, wholesale drug distributors, and physician assistants.” ⁵⁹ Oregon’s shield law provides professional discipline protections to the licenses of a “psychologist, social worker, professional counselor, marriage therapist, physician, nurse, naturopathic practitioner, or pharmacist.” ⁶⁰ By contrast, Minnesota’s shield law only protects reproductive health care providers, not GAC providers, from professional discipline. ⁶¹

These provisions protecting GAC providers from professional discipline are essential to enable them to continue offering medically necessary care without fear of jeopardizing their licensure and livelihood. By mitigating the potential for cross-jurisdictional disciplinary consequences, these laws protect the continuity in patients’ access to GAC. Still, other risks remain for GAC providers and patients.

Privacy and Nondisclosure of Gender-Affirming Care Information

While the Health Insurance Portability and Accountability Act (HIPAA), the main federal health privacy law, provides a baseline protection for medical records and other health information, it only applies to certain health care entities and contains broad exceptions for law enforcement and judicial proceedings. ⁶² Shield laws go above this baseline by providing additional protections for information related to GAC. ⁶³

Several privacy protections extend the investigative protections discussed above. For example, certain entities are prohibited from sharing information related to GAC pursuant to out-of-state investigations (whether in response to an administrative action, a subpoena, a warrant, or another legal process) in at least seven states. Rhode Island and Washington laws apply to business entities generally, while California, Connecticut, Illinois, Maine, and Vermont apply to health care providers and other specified entities in the health care system. ⁶⁴ Colorado and Massachusetts have protections for GAC medication records held in the state prescription drug monitoring program (PDMP); Colorado’s PDMP excludes prescriptions for testosterone, and Massachusetts’s PDMP excludes any medications prescribed for GAC. ⁶⁵ Further, the Massachusetts Department of Public Health is prohibited from supplying law enforcement with individually identifiable PDMP data for an investigation related to GAC, unless required by federal law. At least four states have additional protections for GAC information held in consumer health applications. California, Connecticut, Maryland, and Washington prohibit selling data collected by consumer health applications, including GAC information; California, Maryland, and Washington also restrict the use and sharing of GAC information from health applications. ⁶⁶ Other provisions may protect GAC information but apply more generally to health information. For example, at least four shield states (Connecticut, Maryland, New York, and Washington) have restrictions on geofencing around health care facilities, preventing actors from identifying, tracking, or collecting data from patients who may be receiving GAC or reproductive health care services there. ⁶⁷

Privacy protections also extend to providers. In seven states (Colorado, Maine, Massachusetts, Oregon, Rhode Island, Vermont, and Washington), GAC providers, and often their coworkers, can request to participate in the state’s confidentiality program, which protects the privacy of GAC providers’ information, including their professional address, home address, and contact information from being included in public records. ⁶⁸ Providers in Massachusetts and Vermont may also request that their name be removed from prescriptions for GAC medications, instead replacing it with the name of the health care facility. ⁶⁹

Overall, these shield law provisions heighten the privacy protections for the sensitive personal health information related to GAC and expand the number of entities subject to privacy regulations beyond HIPAA. Such protections are crucial in protecting access to GAC and shielding both patients and providers.

Insurance Coverage Protections

In addition to the protections for GAC provided by shield laws, many states also protect access to GAC through insurance laws, guaranteeing coverage of GAC or preventing discrimination in insurance coverage on the basis of gender identity. This includes many states that have not as of yet adopted GAC shield laws. Twenty-six states and the District of Columbia explicitly cover GAC under their Medicaid policies. ⁷⁰ Many states also protect access to coverage through private insurance. Twenty-four states and the District of Columbia prohibit exclusions of coverage for transgender people. ⁷¹ Fifteen states and the District of Columbia prohibit discrimination on the basis of sexual orientation and gender identity in insurance coverage, ⁷² while eight states prohibit discrimination in health insurance coverage only on the basis of gender identity. ⁷³ In conjunction with the shield laws protecting the provision of care by health care professionals, these health insurance laws secure patients’ access to and ability to afford GAC.

Concluding Thoughts

States have taken a range of actions to protect access to GAC. Some laws seek to limit the enforcement and consequences of other state laws banning or restricting GAC, whether by inhibiting out-of-state investigations into the provision of GAC or limiting the potential liability for patients and providers alike. Other laws focus more on access and availability of GAC, protecting the privacy of patients and providers or securing insurance coverage and the affordability of GAC. While no one provision is sufficient, these state laws are an important step in protecting access to GAC both in individual states and across the country as a whole.

Strengths of GAC Shield Laws

GAC shield laws play an important role in protecting access to GAC. State definitions of GAC as legally protected health care activity — sometimes even recognized as constitutionally protected — support its availability and reinforce its protected status within the individual states. In some cases, these provisions have already supported courts’ recognition of GAC’s legality, even in the context of federal investigations. For example, in quashing a federal subpoena served to Boston Children’s Hospital regarding the provision of GAC to minors, a Massachusetts federal district court found it “difficult to understand what exactly the Government [was] trying to investigate” because GAC was not only legal in Massachusetts but secured by the state’s constitution. ⁷⁷ By setting forth GAC’s protected role in the health care system, state shield laws articulate their public policy with regard to GAC and bolster arguments supporting their legitimacy, both here and in some cases discussed in the next subsection.

Provisions limiting cooperation with investigations and enforcement of liability and judgments related to GAC are essential to achieving these state public policy goals. They help to preserve the availability and accessibility of GAC within a state without interference of or penalization by other states or even the federal government. Scholars have recognized the normative and systemic importance of shield laws in protecting states’ independence and sovereignty. Professor Mary Fan has written on the past harms and limitations of interstate comity, particularly in the context of conflicting laws regarding slavery, and argued that shield laws are an “important innovation … preserving the flexibility and freedoms of horizontal federalism.”Reference Fan ⁷⁸ Professor Lindsay Wiley has also argued that shield laws are supported by the anticommandeering principle, meaning neither states nor the federal government could require a protective state from applying a restrictive state’s laws.Reference Wiley ⁷⁹ In any case, GAC shield laws provide both practical and legal protections for patients and providers alike.

Shield laws not only limit cooperation with investigations into GAC but also provide important protections for liability and professional discipline for providers, ensuring they can continue to deliver care even in the face of restrictive federal and state laws and policies. Given the increase in cross-border GAC provided over telehealth, these provisions are all the more essential in defending access to GAC both inside and outside the state.Reference Duffy ⁸⁰ Similar laws are currently being tested in the abortion context, including a case where a nurse practitioner in Delaware provided medication abortion pills to patients in Texas via telehealth,Reference Mueller ⁸¹ and future challenges are anticipated in the GAC context.

Many other provisions boost patients’ and providers’ protections related to GAC. Privacy protections support the accessibility of GAC and safeguard medical records, in some cases even in the event of state or federal investigations. Insurance and nondiscrimination laws further improve the availability and affordability of GAC. Professor Craig Konnoth, for example, has argued that under state (and some federal) laws, many states are required to continue providing GAC despite contrary out-of-state policies and federal executive orders.Reference Konnoth ⁸² In the complex health care landscape in the United States, and in the face of state and federal actions against GAC, these laws provide meaningful legal and practical mechanisms to preserve access to GAC.

Limitations of GAC Shield Laws

Despite the significance and reach of their protections, shield laws have notable limitations. First, shield laws also may not protect all parties involved in the provision of GAC. Some restrictive states prohibit aiding and abetting the provision of GAC, and not all shield law protections apply to these third parties. ⁸³ Similarly, privacy protections apply to many, but not all, entities in possession of GAC information, limiting the effectiveness of these provisions. ⁸⁴ With record sharing and interoperability among health systems and the gaps in regulation of some third parties, the risk to this information is apparent.

Second, shield laws only apply within the state’s boundaries. Nothing prevents another restrictive state from imposing its laws on patients and providers physically in or with close connections to the state. ⁸⁵ Only California and Massachusetts shield laws explicitly apply protections to GAC delivered via telehealth out-of-state, potentially leaving many patients and providers vulnerable to liability. ⁸⁶ This limitation of shield law protections is particularly relevant in the context of patients increasingly receiving care by travel or via telehealth.Reference Francis and Francis ⁸⁷ Shield laws therefore do little to address the inequities in health care access and the resulting health disparities. ⁸⁸

Third, shield laws may be further limited by states’ obligations to recognize the laws of other states. Under the US Constitution’s Full Faith and Credit Clause, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State,” meaning states are required to respect the public acts, records, and judicial proceedings of other states. ⁸⁹ In the context of GAC bans and restrictions, states may be constitutionally required to recognize, and in some cases enforce, out-of-state judgments and disciplinary actions related to GAC.Reference Amster ⁹⁰ This could raise important questions about the legality of some shield laws, particularly those that restrict civil liability and shield providers from professional discipline. However, there are important exceptions to the Full Faith and Credit Clause that may ultimately support the constitutionality of shield laws. In particular, there are exceptions with respect to the penal laws of another state designed to punish specific harms as well as laws that violate the state’s own legitimate public policy. ⁹¹ Some state shield laws, including those in California, Massachusetts, and Washington, expressly provide that laws restricting access to GAC are contrary to their state’s public policy, bolstering arguments that the latter exception applies. ⁹² Still, courts have not yet ruled on the constitutionality of state shield laws under the Full Faith and Credit Clause, leaving the status of these laws unclear.

Finally, shield laws and other laws protecting GAC are vulnerable to the Constitution’s Supremacy Clause. ⁹³ State GAC laws currently operate in an environment without an expressly contrary federal law. Thus far, the federal government has issued executive orders seeking to limit GAC but has not affirmatively banned or restricted GAC. Federal investigations into GAC have been related to other federal laws, including the Food, Drug, and Cosmetic Act and the False Claims Act. ⁹⁴ If Congress were to pass federal legislation banning or restricting GAC, protective state laws, including shield laws, would likely be preempted. The scope of this preemption, however, would depend on the language of the specific legislation. ⁹⁵

Nonetheless, despite these notable limitations, shield laws play a critical role in protecting access to GAC. By safeguarding patients and providers, these laws reinforce the legitimacy of GAC as essential health care. States must continue to defend access to GAC by expanding existing shield laws and implementing new protections where needed. The final section outlines key recommendations to guide future efforts.

Recommendations: What Should States Do?

The complex legal landscape governing GAC necessitates proactive steps to secure its availability and accessibility. Some actions to protect GAC can only be taken at the federal level, and additional research is needed to address the challenges given the recent federal actions targeting minor patients’ access to GAC. That being said, significant action can be taken to protect GAC at the state level. To support continued access, states should adopt comprehensive shield laws, protecting providers, patients, and other third parties from enforcement of restrictive laws and policies. Many of the states discussed here have many of these provisions, but room exists for these states to strengthen their laws and serve as a model for other states seeking to protect access to GAC.

First, states without shield laws seeking to protect access to GAC should implement them. Currently, only 14 states and the District of Columbia have adopted such GAC shield laws and wider protection is needed to secure access to GAC nationwide. And notably, several states which have adopted insurance coverage protections for GAC have not yet implemented shield laws. ⁹⁶ These states in particular present an opportunity to expand protections of and access to GAC. Looking to existing shield laws for guidance, states should enact protections against out-of-state investigations, subpoenas, and warrants, as well as civil liability and professional discipline. States should also provide greater protections for health information privacy and insurance coverage, as both are essential to ensuring access to GAC.

Second, states should review and amend their laws to fill any existing gaps in protection. For example, investigative protections can be extended by applying to cases regardless of where the patient receiving GAC was located and expanding the limitations on subpoenas and warrants. Liability protections can be expanded with additional choice-of-law provisions, requiring courts to apply the GAC laws of protective states. Privacy regulations should be extended to GAC in all shield states and should be applied to more entities, including non-health care entities and PDMPs in each state, further protecting the private health information of GAC patients. Insurance coverage protections should be as comprehensive as possible, with protections for coverage of GAC even if care is considered cosmetic as it is in Maryland. ⁹⁷

Third, states should work to build coalitions with other shield states and increase their telehealth protections. Because medical practice is often legally deemed to occur where the patient is located, providers offering telehealth GAC across state lines may be exposed to restrictive state laws even when physically practicing in a shield state. Eight states protect providers regardless of patient location, thereby including access to telehealth in the reach of their GAC shield laws. ⁹⁸ Other states should similarly expand their shield laws to protect and provide for access to GAC over telehealth and consider licensure reciprocity for telehealth providers to increase access to GAC providers. Strengthening these protections is essential to ensuring that patients can safely access care and that providers can deliver care without fear of out-of-state interference.

Finally, more states should explicitly recognize GAC as constitutionally protected medical care under their state constitutions. Such recognition may provide one of the strongest available state-law defenses against future efforts to restrict access to GAC. The value of these provisions has already been seen in litigation related to GAC in Massachusetts and could be invoked in future litigation to support the public policy exception of the Full Faith and Credit Clause. ⁹⁹ States may accomplish this legislatively with an interpretation of their state’s constitution, as Massachusetts did by declaring in its shield law that “[a]ccess to … gender-affirming health care services is a right secured by the constitution and laws of the commonwealth.” ¹⁰⁰ Alternatively, this may be done through constitutional amendment, as four states have done in the abortion context. ¹⁰¹ Litigation provides yet another route to recognizing constitutional rights to GAC.Reference Yeargain ¹⁰² At least seven state constitutions provide some rights to health or health care, which could reasonably be extended to GAC. ¹⁰³ Plaintiffs in Montana, for example, argued that the state’s GAC ban violated their state constitutional right to seek health, though the court ultimately addressed their claims under the state right to privacy. ¹⁰⁴ Explicit constitutional recognition, however achieved, would secure the strongest state-level legal protections for GAC, defending its access in light of the shifting legal landscape.

While the foregoing recommendations focus on the legal framework of GAC, access is implicated not only by the formal legal rules and statutory rights but also the underlying economic conditions and social systems in place. Many factors affect access to care, including transportation, employment, insurance coverage, and access to technology. Laws protecting access to GAC are essential, but support and action by other stakeholders are also needed to enable all patients to obtain the GAC they need. These recommendations are nonetheless an important step towards overcoming the barriers to GAC for patients and providers across the country.