By Mollie Wagoner and Sam Schwartz-Fenwick  

Seyfarth Synopsis: Over the last year, there has been an onslaught of state legislation enacting limits on gender-affirming care for minors. Access to gender-affirming care has become a flashpoint at the forefront of the culture wars, with state legislation largely following party lines. While diagnoses of gender dysphoria for minors aged 6-17 have steady increased, with one of the largest upticks seen in 2021, individuals seeking the type of medical care that is targeted by state legislation remains small. In 2021, records indicate that across the entire United States, gender affirming care for minors resulted in 1,390 minors beginning puberty blockers, 4,231 minors beginning hormone therapy, and 282 minors having top surgery; an exceedingly small number when placed against the backdrop of the large amounts of political capital that have been expended implementing state treatment restrictions.

Seyfarth undertook an effort to track and record treatment restriction laws along with any new or existing treatment requirements, specifically from the point of view of health insurance plan sponsors and administrators. These efforts are contained in the Gender-Affirming Care Coverage Survey. This survey specifically tracks and organizes the full spectrum of state law including where coverage is required for insured plans and which states currently do not have active coverage bans. It also tracks states where there is currently no coverage ban for plans, but the state has passed treatment restrictions aimed at providers. The survey further notes where courts have upheld the treatment restrictions, and where the treatment restrictions are currently enjoined. Lastly, the survey actively tracks and records states where coverage for insured plans is prohibited under the state insurance code.

This Survey is a living document, which is regularly updated and reviewed by Seyfarth’s in-house Survey Team. The landscape related to state legislation and gender-affirming care is quickly changing. The treatment restrictions are likely to face larger questions of legality in both the ERISA preemption and sex discrimination context. The goal of this Survey is to help group health plan administrators and sponsors make informed plan design and compliance decisions related to the coverage of gender-affirming care for minors.

Please contact a Seyfarth attorney to discuss the specific implications for your plan and the geographic areas in which it is operated.