Analyzing the Latest Gender-Affirming Care Restrictions in State Laws

At the time of this writing, the Tennessee state government had made headlines across the world that healthcare providers should pay attention to not only for ethical considerations, but also for professional ones. One amendment of the new public health law signed by Governor Bill Lee on March 2, 2023, read as follows:

As introduced, prohibits a healthcare provider from performing on a minor or administering to a minor a medical procedure if the performance or administration of the procedure is for the purpose of enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex (https://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=HB0001).

The “healthcare provider” cited here includes, but isn’t limited to, otolaryngologists and any facilities that participate in this type of care. This includes, but isn’t limited to, feminizing or masculinizing facial surgery and pitch alteration surgery.

If harm results from the care, the lawsuit could name the otolaryngologist or the consenting parent—and the suit can be filed within 20 years of the violation. For reference, the typical medical malpractice claim statute of limitation is two years from the date of injury.

The lack of support and increasing barriers to care for the transgender community has already been shown to be harmful—even deadly—with more than 50% of transgender youth experiencing severe depression and over 40% admitting to self-harm or suicidal ideation.

Penalties include disgorgement of profits received from the procedure and a civil penalty of $25,000 per violation. One amendment to the bill made sure to include even “a minor located in Tennessee via telehealth,” meaning the minor doesn’t need to actually be a Tennessee resident—they just need to be located in the state while discussing this form of care virtually. (The bill carved out an exception for psychological practice, professional counseling, and social work.)

Of note, they justified these regulations under the guise that these procedures harm public health, safety, and welfare. Reality is far from this justification, however:

• According to Tennessee’s published statistics, the two leading causes of death in 2020 for ages 1 to 14 years were “accidents and adverse events” and “assault (homicide)” (General Health Data: Death Statistics. Tennessee Department of Health. https://www.tn.gov/health/health-program-areas/statistics/health-data/death-statistics.html)
• In 15 to 24 year olds, the three leading causes of death in 2020 were “accidents and adverse events,” “assault (homicide),” and “suicide” (ibid). Unfortunately, evidence shows that the transgender population suffers higher suicide and physical violence rates.

The Question of Suicide

The Tennessee Department of Health: Suicide Prevention Report was published in 2021 in response to a 13% increase in suicide from 2015 to 2019 (Tennessee Depart of Health: Suicide Prevention Report. Tenn. Dept. Health. 2021. https://www.tn.gov/content/dam/tn/health/program-areas/vipp/2021-Suicide-Annual-Report.pdf). Firearms were the leading mechanism. In the report, it specifically identifies the LGBTQI+ community as a “high-risk population.”

(It’s important to note here that Tennessee’s gun control laws are relaxed compared to other states’ laws. The state does not require a license or permit to purchase a firearm, or even to register it [Tenn. Code Ann. § 39-17-1301-66]. The AR-15 military-style rifle used at the tragic school shooting at The Covenant School in Tennessee on March 27, 2023, was legally purchased by the offender.)

The Eighth Circuit Court [cited] ample medical evidence revealing the positive effects of genderaffirming care on suicidality and quality of life.

The lack of support and increasing barriers to care for the transgender community has already been shown to be harmful—even deadly—with more than 50% of transgender youth experiencing severe depression and over 40% admitting to self-harm or suicidal ideation (JAMA Netw Open. 2022;5:e220978). This vulnerable population experiences higher rates of suicidal ideation and attempts, homelessness, physical violence, substance abuse, and HIV. Restricting access to this care leads to potentially endless downstream effects. Poor access means higher feelings of rejection, making it less likely they will seek care of any kind, leading to higher acuity of care, worse medical outcomes, higher rates of mental health problems, and suicidal ideation or attempts. The rhetoric used by legislators not only restricts care but marginalizes this already disregarded community. Hate can take root in the most subtle of places.

Is Your State Next?

Facial plastic surgeons, laryngologists, and rhinologists across the country should follow this change in legal landscape because Tennessee is not the first and won’t be the last. Arkansas has already passed a similar law. On April 6, 2021, the Arkansas state legislature overrode a veto by the governor to pass the Save Adolescents from Experimentation (SAFE) Act (Act 626 of 2021. https://encyclopediaofarkansas.net/entries/act-626-of-2021-15789/). This made physicians who provide gender-affirming care to minors subject to loss of licensure and civil liability. Many other states have also introduced similar bills that are sitting in their legislature still under consideration.

Fortunately, the Arkansas courts acknowledged the overwhelming scientific support of this care and agreed with the opposition. In Brandt v. Rutledge, a transgender minor, their parents, and two healthcare providers filed a lawsuit alleging that the act violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Essentially, the act discriminates on the basis of sex and prevents the parents from accessing their fundamental right to seek medical care for their children. The Eighth Circuit Court agreed, citing ample medical evidence revealing the positive effects of gender-affirming care on suicidality and quality of life. Arkansas attempted to disprove these facts by criticizing the structure and integrity of these studies, but the court quickly referenced the wide breadth of national and even international research on the topic. Arkansas’ arguments were “clearly erroneous.”

Unfortunately, the political undermining continued. Arkansas Governor Sarah Huckabee recently signed Act 274 into law on March 13, 2023, the latest tactic to restrict gender-affirming care (Ark. Code Ann. §§ 16-114-401 to -403). In “An Act Concerning Medical Malpractice and Gender Transition in Minors; to Create the Protecting Minors from Medical Malpractice Act of 2023; and for Other Purposes,” Governor Huckabee amended the state medical malpractice act to permit civil suits against the healthcare provider if any harm—physical, psychological, emotional, or physiologic—arises from the gender-affirming care. The claim can be brought within 15 years of the minor turning 18 years old. This makes it exceedingly difficult to obtain malpractice insurance for the provider, which serves to restrict gender-affirming care and stigmatize this population.

Tennessee’s bill is no different. Laws are aimed to protect citizens. Tennessee’s bill does the opposite, effectively increasing the likelihood of childhood mortality. Gender-affirming interventions have repeatedly been shown to make short-term and long-term improvements in mental health (JAMA Netw Open. 2022;5:e220978). Restricting care reverses this progress. These laws fuel misinformation, distrust of science and the politicization of medicine, and serve as another gateway for constraining patient autonomy.

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Dr. Fadel is a PGY-5 with the department of otolaryngology at the University of Pittsburgh School of Medicine. Dr. Troublefield is a clinical instructor of otolaryngology at Brown University in Providence, R.I., and chair of legislative affairs for the AAO-HNS Board of Governors Executive Committee.