The Health Record – Healthcare Law Insights, Issue 3, July 2024 | Spilman Thomas & Battle, PLLC
“Bills to ban transgender health care for people under the age of 18 have been the subject of capitol protest rallies in West Virginia, Ohio and Kentucky.”
Why this is important: In June 2024, the Supreme Court granted certiorari on United States v. Skrmetti which challenges a Tennessee law that bans gender-affirming healthcare for transgender minors. The issue the Supreme Court will hear is whether (and, if so, how) states can ban gender-affirming health care like puberty blockers and hormone therapy for transgender minors.
With persistent movement in the legal landscape surrounding transgender issues in recent years, bills that restrict a minor’s access to puberty blockers and hormone therapy for gender-affirming purposes have been sweeping the country. These bills have been the subject of capitol protest rallies in many states, including West Virginia, Ohio, and Kentucky. These three states are among 25 states that have banned the prescription of gender-affirming medications to transgender minors. Notably, West Virginia’s bill contains a unique exemption. Doctors in West Virginia are permitted to prescribe puberty blockers and hormone therapy if a teenager is considered at risk for self-harm or suicide. The prescribing doctor must receive parental consent and a diagnosis of severe gender dysphoria from two clinicians, including a mental health provider or an adolescent medicine specialist.
Healthcare providers in these states will want to know who the ban applies to. In some states, a minor may continue to be prescribed hormone therapy or puberty blockers if they were being prescribed this before the bill went into effect. In West Virginia, the bill will not apply to patients who received hormone treatment before the bill’s passage. The same is true for patients in Ohio if the prescribing doctor shows that terminating the minor’s prescription would cause harm to the minor. In Kentucky, the bill does not apply to a minor diagnosed or born with a sexual development disorder. A doctor in Kentucky may institute a period during which the minor’s use of the prescription is systematically reduced if immediately taking the minor off the prescription would cause harm to the minor.
Healthcare providers should know the professional and criminal liability for continuing to prescribe these medications in a way not consistent with state law. In Ohio and Kentucky, a doctor could lose their medical license if they prescribe hormone treatment to a transgender minor. Criminal charges for a doctor who prescribes these medications will vary among the states.
Healthcare providers in states that have enacted these restrictive laws should know the parameters within which they can communicate with their patients regarding access to gender-affirming medications. These communications may include out-of-state options; however, it is noteworthy that healthcare providers must be informed on what their state considers “aiding and abetting” someone in violation of a state law. In Ohio, for example, a health care provider breaks the law when they engage in conduct that aids or abets in prescribing hormone or puberty-blocking drugs to a minor.
The West Virginia and Kentucky bills are in full effect; however, Ohio’s bill is currently on hold due to an injunction. Those within Ohio’s healthcare arena should pay close attention to the bill’s status. Healthcare providers in any state that has enacted restrictive bills regarding gender-affirming care must also pay close attention to the Supreme Court decision on this issue. The Supreme Court could deem these bills enforceable to their full extent, rule that any bill restricting access to gender-affirming care from minors is not enforceable, or anything in between. — Sarah W. King
