Patients

The Utah Ban on Gender-Affirming Care for Transgender Youth

Utah's new law prohibits clinicians from providing gender-affirming care under certain circumstances for minors, which could result in disciplinary action or malpractice lawsuits.

Jeanne Varner Powell, JD

05/08/2023

A new Utah ban on gender-affirming care restricts physicians, APRNs, and PAs (collectively, “clinicians”)¹ in their treatment of minor patients. The new law prohibits clinicians from:

Providing “hormonal transgender treatment” (“HTT”) to patients under 18 not diagnosed with gender dysphoria prior to January 28, 2023 and/or
Performing “sex characteristic surgical procedures” on minors for the purpose of “effectuating or facilitating” a sex change.

Violations could result in licensing board disciplinary action and/or malpractice lawsuits. Here, we provide a summary of the law’s provisions.

Surgeries Prohibited

It is unprofessional conduct for MDs or DOs to “perform or cause to be performed” a “primary or secondary sex characteristic surgical procedure” on a minor if done for the purpose of “effectuating or facilitating” a sex change.²

A “primary sex characteristic surgical procedure” includes:

If the patient’s biological sex at birth is male – castration, orchiectomy, penectomy, vaginoplasty, or vulvoplasty
If the patient’s biological sex at birth is female – hysterectomy, oophorectomy, metoidioplasty, or phalloplasty
Any surgical procedure related to or necessary for one of the foregoing procedures that would result in sterilization of an individual who is not sterile³

A “secondary sex characteristic surgical procedure” includes:

If the patient’s biological sex at birth is male - breast augmentation surgery, chest feminization surgery, or facial feminization surgery
If the patient’s biological sex at birth is female - mastectomy, breast reduction surgery, chest masculinization surgery, or facial masculinization surgery⁴

Primary and secondary sex characteristic surgical procedures do NOT include⁵:

Surgery or other procedures performed on a patient who has a “disorder of sexual development”⁶ or
Removing a body part because it is cancerous or diseased, or for a reason that is medically necessary (other than to effectuate or facilitate an attempted sex change)

Hormonal transgender treatments prohibited for minors diagnosed with gender dysphoria AFTER January 28, 2023

It is unprofessional conduct for clinicians to provide “hormonal transgender treatment” to a minor IF the minor did not have a gender dysphoria diagnosis before January 28, 2023.⁷ Hormonal transgender treatment (“HTT”) means administering, prescribing, or supplying any of the following to effectuate or facilitate an attempted sex change:

If the patient’s biological sex at birth is female - a dose of testosterone or other androgens at levels above those normally found in females or
If the patient’s biological sex at birth is male - a dose of estrogen (or synthetic compound with estrogenic activity or effect) at levels above those normally found in males or
A puberty inhibition drug⁸

HTT does NOT include administering, prescribing, or supplying any of the above substances to patients if medically necessary to treat:

Precocious puberty
Endometriosis
Menstrual, ovarian, or uterine disorders
Sex-hormone stimulated cancer or
Disorders of sexual development⁹

Requirements for Providing Hormonal Treatments to Minors Whose Gender Dysphoria was Diagnosed Before January 28, 2023

Clinicians may provide HTT to minors who were diagnosed with gender dysphoria PRIOR to January 28, 2023 ONLY IF the clinician has been treating the minor for gender dysphoria for at least 6 months¹⁰ and meets the requirements listed below.

Certification

Beginning January 1, 2024, a physician, PA, APRN, or mental health professional who provides HTT to minors diagnosed with gender dysphoria prior to January 28, 2023 must have a DHHS-issued “transgender treatment certification.” Providing HTT without certification will be unprofessional conduct. Certification details include:

DHHS will create a “transgender treatment certification” prior to July 1, 2023.
DHHS may issue certification to a physician, PA, APRN, or mental health professional that has completed at least 40 hours of education (from an “approved organization”) related to transgender health care for minors.
An “approved organization” is one approved by DHHS as having expertise regarding transgender health care for minors.
Certifications will be renewable at the time of professional license renewal.
Renewal of the certification requires completion of 20 hours of CE (from an approved organization) related to transgender health care for minors during the CE cycle.¹¹

Other Requirements

It will be unprofessional conduct if the clinician fails to fulfill and document all the requirements listed below.

Beginning July 1, 2023, a physician, PA, or APRN who provides HTT to a minor diagnosed with gender dysphoria prior to January 28, 2023 must do ALL the following:

Determine if the minor has other physical or mental health conditions, identify and document any condition, and consider whether treating those conditions before treating the gender dysphoria would provide the best long-term outcome for the minor.
Consider whether an alternative medical treatment or behavioral intervention to treat the gender dysphoria would provide the best long-term outcome.
Document in the medical record that the clinician has completed steps 1 and 2 above – to fortify the defense of any licensing board complaints, documentation should include detailed information about what was done and the clinician’s’ thought processes and determinations related to 1 and 2 above.
Document in the medical record that the clinician has determined that “providing HTT will likely result in the best long-term outcome for the minor.”
Obtain written informed consent from the minor and the minor’s parent or guardian (unless minor emancipated).
Discuss with the minor:
1. Risks of HTT
2. The minor’s short and long-term expectations regarding HTT’s effect on the minor AND the likelihood that HTT will meet these expectations
Discuss with the parent or guardian:
1. Risks of HTT
2. The minor’s short and long-term expectations regarding HTT’s effect on the minor AND the likelihood that HTT will meet these expectations
3. The parent/guardian’s short and long-term expectations regarding HTT’s effect on the minor AND the likelihood that HTT will meet these expectations
If providing a puberty inhibition drug, provide the minor with the following information:
1. The drug is not approved by the FDA for treatment of gender dysphoria.
2. Possible adverse outcomes of puberty blockers are known to include diminished bone density, pseudotumor cerebri, and long-term adult sexual dysfunction.
3. There is no research on the long-term risks to children who undergo prolonged treatment for gender dysphoria using these drugs.
4. The full effects of puberty blockers on brain development and cognition are unknown.
If providing testosterone/other androgen, or estrogen/synthetic compound with estrogenic activity, provide the minor with the following information:
1. The use of cross-sex hormones in males is associated with risks that include blood clots, gallstones, coronary artery disease, heart attacks, tumors of the pituitary gland, strokes, elevated levels of triglycerides in the blood, breast cancer, and irreversible fertility.
2. The use of cross-sex hormones in females is associated with risks of erythrocytosis, severe liver dysfunction, coronary artery disease, hypertension, and increased risk of breast and uterine cancers.
Document in the medical record that the clinician has provided the minor with the information in number 8 or 9 above, depending on the treatment plan (puberty inhibition drug or hormone).
Obtain a mental health evaluation of the minor as follows:
1. The evaluation must be performed by a mental health professional other than the clinician recommending or providing HTT.
2. Beginning January 1, 2024, the mental health professional must have current transgender treatment certification.
3. The evaluation must contain a determination regarding whether the minor suffers from gender dysphoria in accordance with the Diagnostic and Statistical Manual of Mental Disorders, fifth edition.
4. The mental health professional must confirm in the evaluation that he/she has had at least 3 therapy sessions with the minor.
5. The evaluation must set forth all the minor’s mental health diagnoses and any significant life events that may be contributing to the diagnoses.¹²

Malpractice Claims and Informed Consent

A malpractice claim may be asserted against a clinician based on HTT treatment or sex characteristic surgery for a minor patient where the treatment/procedure began, occurred, or continued after January 28, 2023. The claim must be brought before the patient is 25 years old.¹³
The plaintiff is entitled to seek damages arising from the clinician’s:
- failure to comply with the requirements of 58-1-603 (listed above) when providing HTT to the minor OR
- negligence in providing HTT to the minor OR
- provision of HTT to the minor without the minor’s consent, including if the minor later disaffirms consent as described below¹⁴
An individual who gave informed consent as a minor or for whom consent was given may later disaffirm the consent if:
- The treatment at issue began after January 28, 2023 and
- The consent provided was for HTT or a primary or secondary sex characteristic surgical procedure and
- The individual suffered a permanent physical injury and
- Under the totality of the circumstances the clinician would have reason to believe the minor or a similarly situated minor could later regret having given consent and
- The minor disaffirms consent in writing before age 25.¹⁵

A disaffirmation of consent relates back to the day the original consent was given.¹⁶

DHHS to Conduct Medical Evidence Review of HTT for Minors

DHHS, in consultation with DOPL, Physician’s Licensing Board, Osteopathic Physicians and Surgeons Licensing Board, and University of Utah, will conduct a medical evidence review regarding HTT for minors and provide recommendations for the Legislature to consider in deciding whether to lift the prohibition against providing HTT to minors diagnosed with gender dysphoria after January 28, 2023. The evidence review will:

Analyze HTT prescribed to minors with gender dysphoria including any effects and side effects and whether each has been approved by the FDA to treat gender dysphoria
Review scientific literature re: HTT for minors including short/long term impacts, literature from other countries, and rates of desistence and time to desistence where applicable
Review the quality of evidence cited in scientific literature by analyzing and reporting on the quality of the data based on peer review, selection bias, self-selection bias, randomization, sample size, and other applicable best research practices
Include high quality clinical research assessing short and long-term benefits and harms of HTT for minors with gender dysphoria
Include high quality clinical research assessing short and long-term benefits and harms of interrupting the natural puberty and development processes of the minor
Specify conditions under which DHHS recommends that treatment not be permitted
Recommend information a minor and the parent(s) should understand before consenting to HTT¹⁷
Recommend best practices clinicians should follow to provide such information to minor and parent(s)
Describe the assumptions and value determinations used to reach a recommendation
Include any other information DHHS determines would assist the Legislature in enacting legislation related to HTT for minors

Read this additional article about how this bill is impacting referrals.

^{1 For purposes of the law, “health care provider” includes a physician, physician assistant, or advanced practice registered nurse. Utah Code §58-1-6-3(d).}

^{2 Id. at §§ 58-67-502(f)(i)-(ii) & 58-68-502(f)(i)-(ii).}

^{3 Id. at §§58-67-102(22)(a)(i)-(iii).}

^{4 Id. at §§58-67-102(23)(a)(i)-(ii).}

^{5 Id. at §§ 58-67-102(22)(b)(i)&(ii) & (23)(b)(i)&(ii).}

^{6 Defined as a sexual development disorder where an individual has any of the following conditions:}

^{born with external biological sex characteristics that are irresolvably ambiguous}
^{born with 46, XX chromosomes with virilization}
^{born with 46, XY chromosomes with undervirilization}
^{has both ovarian and testicular tissue}
^{has been diagnosed by a physician, based on genetic or biochemical testing, with abnormal sex chromosome structure, sex steroid hormone production, or sex steroid hormone action for a male or female.}

^{Id. at § 58-1-603(1)(c).}

^{7 Id. at § 58-1-603.1(2)&(3).}

^{8 Id. at §§ 58-1-603.1(1)(b) & 58-1-603(1)(e)(i).}

^{9 Id. at § 58-1-603(1)(e)(ii).}

^{10 Id. at § 58-1-603(2)(a).}

^{11 Id. at § 58-1-603(2)(a)-(d).}

^{12 Id. at § 58-1-603(3)(b), (4)(a)-(d) & (5).}

^{13 Id. at § 78B-3-427(4).}

^{14 Id. at § 78B-3-427(2)(a).}

^{15 Id. at § 78B-3-427(3)(a).}

^{16 Id. at § 78B-3-427(3)(b).}

^{17 Id. at § 26B-1-214.}