AAfter Iowa lawmakers passed a ban on gender-affirming care for minors in March, the managers of an LGBTQ+ health clinic located just across the state line in Moline, Illinois, decided to start offering that care.
The added services will provide care to patients who live in mostly rural areas of eastern Iowa, including some of the hundreds previously treated at the University of Iowa clinic, saving them half-day trips to clinics in larger cities such as Chicago and Minneapolis.
By June, the Four Cities Project, as the Illinois clinic is called, had hired a provider that specializes in transgender health care. So Andy Rowe, the Health Project’s director of operations, called the clinic’s insurance broker to see if the new provider would be added to the nonprofit’s malpractice policy.
“I didn’t expect it to be a big deal,” Rowe said. Next came the insurance carrier quotes. The first specifically excluded gender-affirming care for minors. The next answer was the same. And the one after that. By early November, more than a dozen malpractice insurers had declined to offer the clinic a policy.
Rowe didn’t know it at the time, but he wasn’t alone in his frustrating search.
States erect barriers to care
Almost half of the states have banned medication or surgery for transgender youth. Independent clinics and medical practices located in states where such care is permitted or protected have moved in to fill this void for patients who commute or move across state lines. But as the risk of litigation for clinics grows, obtaining malpractice insurance on the commercial market has become a silent barrier to providing care, even in states with legal protections for trans health care. In extreme cases, lawmakers have introduced abuse insurance provisions against gender-affirming care in states where courts have delayed or blocked anti-transgender legislation.
Five months after he began looking for abuse insurance, Rowe said he received an offer for a policy that would allow the Project to treat trans youth. Then he realized that finding a police officer was only the first hurdle. He expected the coverage to cost $8,000 to $10,000 a year, but he was quoted $50,000.
Rowe said he had never experienced anything like it in his 20 years working in health care administration.
Insurance industry advocates say the higher premiums are justified because the rise in legislation related to the care of gender-affirming minors means clinics are at increased risk of being sued.
“If state laws increase liability risk for health care professionals, premiums will be adjusted accordingly and appropriately to reflect the level of financial risk assumed by the insured,” Mike Stinson, vice president of public policy and legal affairs at Medical Professional Liability Association, an insurance trade association, said in an emailed statement. If state laws make an activity illegal, then insurance won’t cover it at all, he said.
Read more: Bans on gender-affirming care are spreading across the country
Only a few states have enacted laws that prevent malpractice insurers from treating gender-affirming care differently than other care. Massachusetts was the first when lawmakers there passed legislation that says insurers can’t raise rates for health care providers for offering services that are illegal in other states.
Since then, five other states have passed laws requiring malpractice insurers to treat gender-affirming health care like any other legally protected health activity: Colorado, Vermont, New York, Oregon, and California (similar legislation is pending in Hawaii) .
“It was a preventative measure and it was met with total acceptance by both insureds and insurers,” said Vermont state Sen. Virginia “Ginny” Lyons, a Democrat who co-sponsored the state law. She said lawmakers consulted with both doctors and malpractice insurance companies to make sure the language was accurate. Insurers just wanted to be able to clearly assess the risk, she said.
Lyons said she hadn’t heard of Vermont providers having problems with their malpractice insurance before the law went into effect, but she fears the policy could hinder doctors’ ability to offer care. In March 2022, The Texas Tribune reported that a Texas doctor stopped offering care because his malpractice provider stopped covering hormone therapy for minors.
Extension of limitation periods
Lawmakers in some states have gone further and revised abuse provisions to limit access to gender-affirming care, often while bans on offering such care to trans youth are held up in court. In 2021, Arkansas became the first state to ban gender-affirming care for trans children. When that ban was held up in court this year, the governor signed a new law allowing anyone who received gender confirmation care as a minor to file an abuse lawsuit up to 15 years after turning 18.
Similar laws followed in Tennessee, Florida and Missouri, all of which extended the statute of limitations for filing a malpractice claim from 15 to 30 years. (Another was introduced but not passed in Texas that would have extended the statute of limitations to the patient’s lifetime.) Malpractice claims must typically be filed within one to three years of the injury.
The civil liability these laws created forced at least one clinic to stop offering some treatments. The Washington University of Missouri Transgender Center said the law subjects the clinic to an “unacceptable level of liability.”
Alejandra Caraballo, a civil rights attorney, said there is a “concerted effort by anti-trans activists to use malpractice insurance as a means of removing care.”
She compared the strategy to laws that have long targeted abortion providers by increasing “legal liability to chill certain types of behavior.”
Anti-trans activists have drawn attention to a small number of “detranslators” who have filed lawsuits against doctors who provided them with gender-affirming care, Caraballo says. She believes these lawsuits, filed in states like California, Nebraska and North Carolina, will be used to lobby for longer statutes of limitations and create the perception that provider liability is increasing.
For independent clinics, such as The Project in the Quad Cities, and small medical practices that purchase their malpractice insurance on the commercial market, these tactics limit their ability to offer care. Many providers of gender-affirming care are protected from rising premiums, such as health centers that receive federal funding that are covered by the Federal Tort Claims Act, or academic medical centers and Planned Parenthood clinics that are self-insured. But a small number of independent clinics have been evaluated.
Insurance premiums double
In New Mexico, a state that, like Illinois, has protected access to gender-affirming care, family medicine physician Anjali Taneja said the clinic where she works faces the same problems getting coverage.
Casa de Salud in Albuquerque, where Taneja is executive director, has been providing gender-based care to adults for years, but when the clinic decided to start offering that care to younger patients, insurers didn’t issue a malpractice policy. The clinic was quoted as having “doubled what we paid a few years ago” just to cover the gender-affirming care it offers to adults, Taneja said.
The bureaucracy faced by Casa de Salud and The Project hindered the treatment of patients. When Iowa’s ban on gender-affirming care went into effect Sept. 1, The Project officials hoped to offer services to transgender youth who had previously sought care an hour west at the University of Iowa’s LGBTQ clinic. Instead, Rowe said, patients make the difficult decision between going without treatment or traveling four hours to Chicago or Minneapolis.
After months of fundraising, the Project has almost enough money to pay off the $50,000 malpractice policy. But, Rowe said, “it’s a tough swallow.”