New Law Impacting Gender Transition Health Care for Minors
House Bill 808- referred to as Session Law (S.L.) 2023-111 now that it has become law- prohibits the initiation of gender transition health care for transgender minors who were not already actively receiving gender transition health care as of August 1, 2023. The law also creates new penalties for medical professionals who provide gender transition health care to minors, establishes immunity for medical professionals and health care entities that decline to provide such care, and prohibits the use of certain State funds for gender transition health care provided to minors. S.L. 2023-111 was passed after a legislative override of the Governor’s veto and has various effective dates, some of which are retroactive to July 1 or August 1, 2023.
Restriction on Providing Gender Transition Health Care to Minors
The new law prohibits “medical professionals” from delivering three types of gender transition health care to minors: performing “surgical gender transition procedures” and prescribing, providing, or dispensing “puberty-blocking drugs” or “cross-sex hormones.”
Who Is a Minor?
The law defines a minor as any person under age 18. There is no distinction between an emancipated and unemancipated minor; age is the determinative factor.
Who Is a Medical Professional?
For the purpose of this new law, “medical professional” means anyone licensed to practice medicine or to prescribe or dispense drugs under G.S. 90. This includes physicians, nurse practitioners, physician assistants, pharmacists, and pharmacy technicians. The law clarifies that licensed mental health professionals are not prohibited from treating minors when that treatment is within the scope of the professional’s practice and does not constitute performance of a surgical gender transition procedure or the prescribing, providing, or dispensing of puberty blocking drugs or cross-sex hormones.
The Three Types of Gender Transition Health Care
The law defines a “surgical gender transition procedure” as “[a]ny surgical service, including, without limitation, genital gender reassignment surgery and non-genital reassignment surgery, physician’s services, and inpatient and outpatient hospital services related to gender transition, that seeks to do any of the following for the purpose of effecting a gender transition: (a) Alter or remove physical or anatomical characteristics or features that are typical for the individual’s biological sex. (b) Instill or create physiological or anatomical characteristics that resemble a sex different from the individual’s biological sex.” The terms “genital gender reassignment surgery” and “non-genital reassignment surgery” also have their own definitions, each of which lists specific procedures that cannot be performed on a minor “for the purpose of assisting an individual with a gender transition.”
“Puberty-blocking drugs” are defined under the new law as “[g]onadotropin releasing hormone analogues or other synthetic drugs used in biological males to stop luteinizing hormone secretion and therefore testosterone secretion, or synthetic drugs used in biological females which stop the production of estrogens and progesterone, when used to delay or suppress pubertal development in children for the purpose of assisting an individual with a gender transition.” Gonadotropin releasing hormone (GnRH) is made in the pituitary gland of the brain in people of all sexes. When GnRH is released from the brain, it tells parts of the body to make certain sex hormones: testicles will respond by producing testosterone and ovaries will make estrogen and progesterone. GnRH is typically low in children until puberty, when the body begins to make more GnRH. This triggers the production of sex hormones- testosterone, estrogen, progesterone- and causes the development of secondary sex characteristics (for example, facial hair or breast development). GnRH analogues can be given to a patient to eventually reduce the pituitary gland’s own production of GnRH, which pauses puberty and the further development of secondary sex characteristics. More information about GnRH and its uses in gender transition health care can be found on the Mayo Clinic’s website.
The law defines “cross-sex hormones” as “[s]upraphysiologic doses of testosterone or other androgens to members of the female biological sex or supraphysiologic doses of estrogen or synthetic compounds with estrogenic activity to members of the male biological sex when used for the purpose of assisting an individual with a gender transition.” The term “supraphysiologic” means an amount that is greater than what is normally present in the body. While GnRH analogues can be administered to prevent the further development of secondary sex characteristics, hormones like estrogen and testosterone can be given to prompt the development of certain secondary sex characteristics.
Exception: Gender Transition Health Care Started Before August 1, 2023
The law creates an exception for minors who began receiving gender transition health care prior to August 1, 2023. Specifically, the law allows a medical professional to continue or complete a course of treatment that involves a surgical gender transition procedure or administration of puberty-blocking drugs or cross-sex hormones if three conditions are met. First, the course of treatment must have started before August 1, 2023, and the minor’s care must have been “active” as of August 1, 2023. The law does not include a definition of “active” care. Second, the medical professional must find, in their reasonable medical judgement, that it is in the best interest of the minor to continue or complete the course of treatment. Third, the minor’s parent or guardian must consent to continuation or completion of the treatment.
Exception: Treatment for Certain Health Conditions
The law clarifies that a medical professional may provide a minor with certain types of care, including care that meets the law’s definitions of genital gender reassignment surgery or non-genital gender reassignment surgery, when the minor’s parent or guardian gives informed consent and the care is meant to treat certain health conditions described in the law. This could include, for example, performing breast reduction surgery on a female patient to alleviate a physical health condition.
New Penalties for Medical Professionals and Their Employers
Loss of Licensure
If a medical professional provides care to a minor in violation of the new law, the medical professional’s actions will be considered unprofessional conduct and the medical professional’s license to practice will be revoked. As explained earlier in this blog post, “medical professional” means anyone licensed to practice medicine or to prescribe or dispense drugs under G.S. 90 and includes physicians, nurse practitioners, physician assistants, pharmacists, and pharmacy technicians. The loss of licensure provision takes effect (retroactively) on August 1, 2023. It is not yet clear what this may mean for medical professionals who provided gender transition health care to minors between August 1 and August 16, 2023, when S.L. 2023-111 was passed into law. It is possible that the legislature could amend this and other effective dates in S.L. 2023-111 through later legislation.
Liability and Civil Remedies
The law also establishes civil remedies for an injury (any physical, psychological, emotional, or physiological harm) that a minor suffers as a result of a surgical gender transition procedure, puberty-blocking drugs, or cross-sex hormones. These remedies include declaratory or injunctive relief, compensatory damages, punitive damages, attorneys’ fees, court costs, and any other appropriate relief. A minor can sue and seek these remedies against two parties: the medical professional who provided gender transition health care to the minor and the entity that employed or contracted with the medical professional. Medical professionals and the entities that employ or contract with them are prohibited from contractually waiving either party’s liability under the new law. The law creates liability for injuries that result from even the lawful provision of gender transition health care to a minor. For example, a minor who began gender transition health care before August 1, 2023, could sue a medical professional who lawfully continued providing that gender transition health care if the care later resulted in physical, psychological, emotional, or physiological harm to the minor.
The minor (or a parent or guardian on the minor’s behalf) has a limited timeframe to file a lawsuit against a medical professional or the employing/contracting entity under the new law. This limited timeframe is called a “statute of limitations” or “SOL.” The SOL for claims brought under this new law is the latter of 25 years from when the minor turns 18 (which would be when the minor reaches age 43) or within 4 years of discovering both the injury and the causal relationship between the injury and the gender transition health care that was provided. Typically, under G.S. 143-299, when a State government department, agency, or institution is the party being sued, the person alleging harm only has three years from when the harm accrued to bring their claim against the State. S.L. 2023-111 creates an exception to this rule and says that the longer SOL described in the new law applies to claims made against State government, too. Additionally, G.S. 90-21.19(a), which limits the noneconomic damages (money) that can be awarded in a medical malpractice case, does not apply to claims brought under the new law. The section of S.L. 2023-111 that establishes liability for medical professionals and their employers and contracting entities takes effect (retroactively) on July 1, 2023.
Immunity for Not Providing Gender Transition Health Care
Under the new law, no medical professional or an entity that employs or contracts with a medical professional can be required to perform a surgical gender transition procedure or to prescribe, provide, or dispense puberty-blocking drugs or cross-sex hormones. Furthermore, hospitals and health care institutions cannot be required to participate in or allow the use of their facilities by a medical professional providing gender transition health care, regardless of whether the medical professional is an employee or contractor or if the medical professional has admitting privileges for the hospital or health care institution. Medical professionals, entities that employ or contract with medical professionals, hospitals, and other health care institutions cannot be held civilly, criminally, or administratively liable for declining to provide or be involved in providing gender transition health care to minors. The section of S.L. 2023-111 that establishes these liability protections went into effect (retroactively) on August 1, 2023.
Limits on Use of State Funds
The new law prohibits the use of State funds, “directly or indirectly,” for the performance of or “in furtherance of” surgical gender transition procedures or the provision of puberty-blocking drugs or cross-sex hormones to a minor. The law does not define what it means to use State funds “in furtherance of” gender transition health care. Additionally, State funds cannot be used to administer any governmental health plan or government-offered insurance plan that covers surgical gender transition procedures, puberty-blocking drugs, or cross-sex hormones for minors. This means that a family enrolled in Medicaid, for example, cannot use the Medicaid program to help cover the costs of gender transition health care for a minor in the family. The provision of S.L. 2023-111 that bars the use of State funds for gender transition health care went into effect (retroactively) on August 1, 2023.
The law carves out the State Health Plan for Teachers and State Employees (hereinafter, the “State Health Plan”) from the prohibition against using State funds for gender transition health care. The State Health Plan provides coverage to an estimated 750,000 teachers, state employees, retirees, and their dependents across North Carolina. The carve out for the State Health Plan is likely due to a recent order issued in Kadel v. Folwell, No. 1:19CV272, 2022 WL 1046313 (M.D.N.C. Apr. 7, 2022) that enjoined the State Health Plan from not providing coverage for certain types of gender transition health care. The Session Law notes that the ban on using State funds for gender transition health care will apply to the State Health Plan after 30 days if the injunction in Kadel v. Folwell is vacated, overturned, or no longer in force.
Frequently Asked Questions
What if a minor wants to start gender transition health care after August 1, 2023, and the minor’s parent or guardian consents to the care?
The law does not create an exception for situations where a minor’s parent or guardian gives consent for the minor to have a surgical gender transition procedure or receive puberty-blocking drugs or cross-sex hormones. Therefore, gender transition health care cannot be initiated for a minor after August 1, 2023 even if the minor’s parent or guardian consents to the care.
Does the new law mean that minors cannot receive certain surgeries, puberty-blocking drugs, or hormones as treatment that is not “for the purpose of assisting an individual with a gender transition?”
No. The law only restricts the performance of a surgical gender transition procedure on a minor or the prescribing, providing, or dispensing of puberty-blocking drugs or cross-sex hormones to a minor when the purpose of that health care is to assist an individual with a gender transition.
For example, GnRH analogues are used to treat various health conditions, including precocious puberty, which occurs when a child begins puberty too early. Because the law defines “puberty-blocking drugs” to only include situations where the drugs are used “for the purpose of assisting an individual with a gender transition,” the law should not limit the provision of GnRH analogues as treatment for precocious puberty in minors.
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