Jennifer (Jenny) M. Nelson Carney and Erin Sutton, attorneys in the Health Care & Life Sciences practice, in the firm’s Columbus and Chicago offices, respectively, contributed to the American Health Law Association’s “Top Ten Issues in Health Law 2025,” with the article, “Gender Affirming Care—2025 Outlook.”
Following is an excerpt:
Over the past few years, a growing number of states has moved to either restrict or protect access to certain treatments for gender-diverse minors via state legislation. At the writing of this article, 26 states have enacted legislation to restrict certain forms of gender affirming care (GAC) for minors. Of these states, 23 state bans are currently in effect, one state law (Arkansas) is permanently enjoined, another state law (Montana) is temporarily enjoined with litigation pending, and the final state law (Wyoming) has not yet taken effect. The remaining 24 states, the District of Columbia, and five territories either have no restrictions on GAC or actively protect access to this care.
In the last two years, there has been significant litigation challenging these bans in both state and federal court. A case challenging Tennessee’s 2023 prohibition on GAC is currently pending before the Supreme Court of the United States (SCOTUS), United States v. Skrmetti. The Court heard oral arguments on December 4, 2024 as to whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the Equal Protection Clause of the Fourteenth Amendment. The Biden administration intervened in the case to challenge the state’s law. President-elect Trump incorporated anti-GAC messaging during his recent presidential campaign, so it is expected that his administration will take a different position regarding the pending litigation. We can expect a SCOTUS decision in 2025 but Justices’ comments seem to indicate support for upholding Tennessee’s ban.
We have also seen certain states start to enforce bans against physicians who are alleged to provide prohibited GAC. In 2023, the Texas Legislature passed Senate Bill 14, which prohibits doctors from offering treatment for the purposes of “transitioning a child’s biological sex” or “affirming the child’s perception of the child’s sex if that perception is inconsistent with the child’s biological sex.” Since that law took effect in June 2024, the state of Texas has sued at least three physicians for “providing, prescribing, administering, or dispensing cross-sex hormones to minors,” accusing one such physician of being a “scofflaw who is putting the health and safety of minors at risk.”
In addition to continued activity at the state level, we may see movement at the federal level. The first Trump administration issued a final rule implementing Section 1557 of the Affordable Care Act (a section that prohibits discrimination based on race, color, national origin, sex, age, and disability in health care programs and activities) that significantly narrowed the scope by, in part, eliminating the general prohibition on discrimination based on gender identity and sex-stereotyping. The Trump administration also eliminated specific health insurance coverage protections for transgender individuals and prohibitions against discrimination based on gender identity and sexual orientation in ten other federal health care regulations outside Section 1557. The second Trump term may include similar attempts to curtail protections for transgender persons. President-elect Trump’s agenda for his second term specifically includes the promise to “ban Taxpayer funding for sex change surgeries, and stop Taxpayer-funded Schools from promoting gender transition, … and restore protections for women and girls” so additional federal action in this area is likely.
