New TX Law Restricts Gender Affirming Care for Youth Effective September 1, 2023

Texas SB 14, which has been sent to the Governor to become law, will severely restrict gender affirming treatment on minors (surgery and medications) starting September 1, 2023.  The new law imposes these restrictions not just on health care providers but also on health plans.

The new law is focused on prohibiting surgeries and medications for minors (including puberty blockers, hormones, and other medical interventions) that can cause temporary or permanent infertility or removes “any otherwise healthy or non-diseased body part or tissue.”  Supporters of the bill have argued that the legislation protects minors from irreversible medical procedures until they reach adulthood.

The law provides some exceptions as follows:

• Puberty blockers are allowed for youth in limited situations (such as with parental consent for children with precocious puberty or some medically verifiable genetic disorders).
• Youth who had a minimum amount of mental health counseling or psychotherapy sessions and already started taking a medication before June 1, 2023, will not be immediately cut off but will be required to “wean off the prescription drug over a period of time and in a manner that is safe and medically appropriate and that minimizes the risk of complications.”

Which Group Health Plans Are Affected?

Fully insured health plans issued in Texas. The insurance company should issue an update before September 1 and offer a plan amendment to share with employees and COBRA qualified beneficiaries.

Does This Apply to Self-Funded Group Health Plans or Fully Insured Group Health Plans Not Issued in TX?

No.

• If the health plan is self-funded, then ERISA should, in theory, preempt the law with respect to the prohibition on health plan coverage.
• With respect to fully insured group health plans not issued in TX, this law does not apply.

Even if the TX law does not apply to the group health plan, it still applies to the health care provider, so it seems unlikely the minor would maintain in-state access to the full scope of care available to them today.

The passage of SB 14 has raised several concerns for those that opposed the bill, and it’s expected that advocacy groups will challenge it in court.

Once the governor signs the bill, Texas will join over a dozen other states with similar prohibitions on gender affirming care for minors, including AZ, AR, FL, GA, ID, IN, IA, KY, MS, MO, MT, NE, ND, OK, SD, TN, UT, WV, with more state legislatures actively pursuing similar laws.  In light of the polarizing environment that exists here and in Europe today, Reuters has published a 4-part investigative series on the current science behind gender affirming care for youth which may help provide as much perspective for HR as possible on this complex topic.

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