The Texas Senate passed a first-of-its-kind bill last week that would make it virtually impossible for a trans person of any age to access gender-affirming care in the state. All those invested in trans liberation have known from the jump that this has been the Republicans’ end game; the relentless attempts to ban trans children’s medical care were simply an opening salvo to a wider attack on all trans existence. Texas Senate Bill 1029 makes this genocidal agenda abundantly clear, while introducing an insidious new strategy for expanding trans health care bans to adults: financial liability.
Many trans adults already lack access to transition-related health care in the seven states, including Texas, where Medicaid coverage of such care is prohibited. Missouri’s recent “emergency rule,” while temporarily blocked, would severely restrict all trans health care in the state. The latest Texas bill builds upon this precedent by banning any publicly funded insurance plans, including those of state and local employees, from covering gender-affirming services.
But S.B. 1029 also creates new obstacles for health care providers seeking to offer transition-related health care by lowering the threshold for medical liability to an unprecedented extent. This means that, if passed, the law would make doctors and insurers strictly liable to cover the costs of any future health care a patient should seek throughout their entire life, should it relate to the gender-affirming care they’ve received.
The proposed legislation hinges on the false premise that many people who transition will experience regret or eventually detransition. In fact, detransition is rare, and it’s highly unlikely that many patients would sue their doctors to cover future health care costs. But insurance companies don’t think that way: The sheer possibility of lifetime liability would make it impossible for health care providers to obtain the insurance coverage necessary to offer gender-affirming care. The risk would be deemed too high.
Such strict liability does not exist for any other medical procedures, even though a vast amount of surgeries and medical treatments carry the risk of requiring future, related care. Under S.B. 1029, a doctor could follow every best practice in providing medically necessary care for a trans person, from hormone therapy to surgery, and still be liable in a malpractice lawsuit years down the line.
“Something as common as an appendectomy carries the lifelong risk of later developing small bowel obstruction — would they ever make surgeons liable to cover that?”
“Every surgery, every medical procedure comes with some risk,” said Dany Hanna, a surgeon who runs a practice solely dedicated to providing gender-affirming surgeries for adults in Frisco, Texas. “Something as common as an appendectomy carries the lifelong risk of later developing small bowel obstruction — would they ever make surgeons liable to cover that?”
As the Texas Tribune reported, an exchange in the Texas Senate during debate made explicit the extraordinary nature of the proposed legislation.
“If a patient comes in and requests a procedure and the physician provides the procedure and does so competently, that physician is nevertheless liable to that patient for anything that follows that procedure. That is the intent of the bill?” Democratic state Sen. Nathan Johnson asked the bill’s author, Republican Sen. Bob Hall.
“Yes,” Hall responded. Johnson in turn replied, “That seems to be contrary to everything in contract law in [the] history of Western civilization, but it’s in the bill.”
The Republican strategy is clear and devious: Avoid the obvious constitutional challenges to explicit all-out bans on transition care for adults by forging novel legislation that renders medical transition effectively impossible. The approach echoes the pre-Dobbs anti-abortion playbook, which made abortion de facto unavailable in numerous red states long before the fall of Roe.
Hanna told me that he only found out about the proposed legislation when a number of patients asked if his practice would be able to stay open. “We’re a small operation, that’s how we’re able to provide excellent care, but we run on fine margins,” he said. Hanna noted he is one of the only surgeons specializing in complex bottom surgery in Texas and its surrounding states.
“There’s already not enough care in the South Central states,” Hanna said. Were his practice unable to operate, that care would be inaccessible to all but those with resources to seek care out of state. Hanna added that he “will not be bullied” and “won’t be going anywhere,” having dedicated his life to providing trans people with the care they need and deserve. Yet, as we have seen with risk-averse hospitals and clinics offering abortion care, many — including Planned Parenthood — were swift to shutter such services rather than risk legal liability.
Christopher Hamilton, CEO of nonprofit Texas Health Action, told the Texas Tribune that S.B. 1029 is “an attempt to chill health care for all trans people.” Relying on a chilling effect is indeed a tried-and-tested Republican strategy, rendered all the more effective when liberals refuse to put up a robust opposition, in a country where the interests of capital inform the shape of health care provision.
More than 500 anti-trans bills have been introduced in statehouses nationwide in the last year, around 100 of which are in Texas alone. Most of the legislation continues to target minors. But as S.B. 1029 progresses to the Texas House for a vote, we must all watch carefully. Whether or not this bill passes into law, we can expect to see more like it, as Republicans in other states will surely embrace similarly underhanded attempts to render medical transition financially and practically impossible for all trans people. Every effort must be made to stop this bill, and its future imitators, from passing.
Whether or not this bill passes into law, we can expect to see more like it.
A significant number of anti-trans laws, including the Missouri “emergency rule,” are currently held up in federal courts by temporary injunctions, ruled upon in some cases by conservative judges. These legal challenges are crucial. Yet with such a relentless onslaught of eliminationist legislation passing at breakneck speed, and a darkly conservative Supreme Court with which to eventually contend, the judicial system cannot be relied upon to protect trans people in the long run. Trans kids and adults seeking medical care, and health care providers like Hanna willing to take risks to continue to serve their community, will need a wealth of robust support — as with the fight for reproductive freedom, this will mean raising funds and sharing medical resources across state lines.
Medical institutions, courts, and statehouses did not pave the way for trans people to gain the rights and access to treatments that are now under attack. Indeed, such institutions have served as regular obstacles. Trans rights and freedoms have always been won through the ingenuity and struggle of trans people. Their protection and necessary expansion will require the same, and it is high time that those on the front lines be backed by groundswell of solidarity.