Gender-Affirming Health Care Will Again Be An Issue to Watch in 2024

As we highlighted in a recent blog post, regulation of gender-affirming care was a major trend across the country during the 2023 legislative session. Over one-third of states enacted new or tightened existing legislation restricting gender-affirming procedures or treatments in children under the age of 18. These new laws, in addition to those already in place, increased the number of states with these restrictions to nearly half the states. Many of the remaining states without legal restrictions did introduce restrictive legislation during the 2023 session and are likely to repeat these attempts in 2024. 

In the majority of the remaining states without gender-affirming care restrictions, laws and executive orders that shield various aspects of treatment are already in existence to some degree or another. An emerging trend in these shield laws, however, are bills that insulate individuals within the state from legal action that originates in another state where bans are in place. Already, at the very beginning of the 2024 legislative session, Vermont lawmakers have introduced legislation prohibiting the denial of parental rights based on violating another’s state’s ban on providing gender affirming care. Lawmakers in Virginia introduced SB 278 prohibiting the extradition of an individual to another state when it involves a protected health activity. Bills providing similar protections have also carried over from 2023 in states like Maine and New Hampshire. In contrast, Illinois’s HB 4302 seeks to repeal a law that shields health care professionals from participation in another state’s criminal investigation of gender affirming care. Such laws set the stage for a legal tug war over jurisdiction and restrictions on interstate commerce.

Many states will be looking to the courts to determine their legislative strategies. State lawsuits challenging gender-affirming care bans for minors argue that such laws are unconstitutional violations of an individual’s Fourteenth Amendment right to equal protection and due process. Proponents of the bans rely on the U.S. Supreme Court decision in the abortion rights case of Dobbs v. Jackson Women’s Health Organization, arguing that, like abortion, gender-affirming care is not protected by the Fourteenth Amendment’s equal protection clause because it is not “deeply rooted” in the nation’s history and does not discriminate based on sex, but by medical condition. Responses from the courts so far have been extremely mixed. Courts in a handful of states, including Idaho, Arkansas, Montana, Florida and Indiana have all temporarily or permanently blocked the enforcement of all or part of recently enacted legislation while the lawsuits work their way through the court system. Courts in other states have permitted these laws to go into effect despite legal challenges, including most recently West Virginia, Louisiana, and Alabama.

Efforts to either prohibit or protect gender-affirming care for minors continue to occupy legislatures across the country. State supreme courts and, ultimately, the U.S. Supreme Court will be the final arbiters determining what laws are fully implemented. It is unlikely, however, that the diverse and numerous legal questions will all be answered in a single case, and questions of state and federal constitutionality will linger for some time. Some states may seek to circumvent the process and simply incorporate certain health care rights within their own constitutions, including treatments like gender-affirming care and abortion. MultiState will be following these legal cases and others closely, so please look out for more updates by signing up for our email list.

Tracking State Health Care Legislation 

MultiState’s team is actively identifying and tracking health care issues so that businesses and organizations have the information they need to navigate and effectively engage. If your organization would like to further track health care or other related issues, please contact us.