This section provides an overview of the types of liabilities that may potentially arise under anti-GAC laws for psychologists who work with transgender and gender-diverse patients. This includes situations involving therapy sessions, evaluations, or other more direct involvement in a patient obtaining medical GAC interventions.
3. What potential liability might I face due to these laws?
The legal landscape surrounding GAC laws is complex and rapidly evolving. The impact of these laws on psychologists can vary significantly. In this FAQ, we discuss:
- the different ways that GAC laws reach or do not reach the actions of psychologists;
- the different types of liabilities under these laws; and
- specifics on how psychologists might face liability for their indirect involvement with patients pursuing medical GAC.
A. To what extent do GAC laws reach psychological services?
Because most state statutes define GAC in medical terms, many provisions address only surgical or pharmacologic care and the health care professionals who deliver it.
Several states explicitly provide that their GAC restrictions do not apply to mental health services for transgender and gender-nonconforming individuals. Examples include:
- Alabama provides, “Nothing in this act shall be construed as limiting or preventing psychologists…” from providing services within their qualifications. Alabama SB184
- Tennessee’s law clarifies that the law “does not prohibit or restrict psychological practice, the practice of professional counseling or the practice of social work.” Tennessee Code 68-33-109
State laws with language like Alabama and Tennessee indicate that mental health services provided by psychologists would be unlikely to be restricted.
Laws targeting medical interventions or physicians
Most GAC bans are an effort to prevent medical interventions, as expressed above. In most states, this includes surgery and prescribing hormone therapy and puberty blockers. Thus, the professionals most impacted by such laws are physicians, nurse practitioners, physician assistants, and other medical staff who are authorized to perform gender-affirming surgery or prescribe the relevant hormones and medications.
Some laws targeting medical GAC may create risks for psychologists because of their indirect involvement in GAC treatment.
As discussed in the next section, some state laws specifically banning medical GAC procedures or targeting medical providers have provisions that may create risks for psychologists alleged to have aided or encouraged the patient in obtaining medical interventions targeted by the law.
States restricting how psychologists provide services
Some states attempt to regulate how psychologists treat minors with gender dysphoria by, for example, mandating specific evaluation criteria or limiting treatment options. Ohio’s law makes mental health practitioners follow certain steps when diagnosing or treating a minor with a “gender-related condition,” which is broadly defined in the law. The Ohio law requires psychologists to screen minors for other problems before treating gender-related conditions. However, the law’s nonexhaustive list of screening requirements leaves uncertainty as to exactly what screening would be sufficient under the law.
B. Types of potential liability
The following are types of liability that could be faced if a GAC law is violated:
- Civil liability: Many states, including Kentucky and Montana, have GAC laws that impose civil liability, such as fines or lawsuits filed by the state or individuals (such as the minor or their family) for violating the GAC law.
- State licensing board complaints: A handful of states label providing GAC as unprofessional conduct, which could lead to disciplinary action by a state licensing board that could arguably result in suspension or even revocation of your license to practice.
- Criminal liability: A small number of states have taken a more severe approach, classifying the provision of GAC services as a crime, potentially resulting in jail time or fines. States that have made the provision of GAC services a crime include North Dakota, Idaho, Oklahoma, Alabama, and Florida.
Some states have incorporated—either directly or indirectly—criminal law concepts into their anti-GAC laws.
C. Indirect liability under GAC laws targeting medical interventions
Some states’ GAC laws may create risks for psychologists working with transgender and gender diverse patients even if they are not directly involved in providing prohibited medical GAC services, but are involved in a patient’s pursuit of such care, for example by providing a diagnosis or evaluation.
Here’s how:
Aiding and abetting: Some state GAC laws have explicit “aiding and abetting” language where a state may hold a psychologist responsible even if their only involvement was providing clinical services to a patient who later received medical GAC.
Implied criminal law theories: Even without including “aiding and abetting” language, if a state makes GAC a crime, “aiding and abetting” or “acting as an accomplice” to a crime may be an implicit component of the state’s criminal law.
Vague terms: Some state GAC laws use unclear terms that ban such things as “inducing” or “encouraging” medical GAC without defining them. These ambiguous terms may have a similar impact as “aiding and abetting” provisions.
Any of the types of provisions noted above could be used to attempt to hold psychologists legally liable for their involvement in a patient’s efforts to obtain prohibited GAC.
Shield laws: Some states are trying to protect providers and patients by enacting “shield laws” that prevent legal consequences related to GAC services. For more information on shield laws, see FAQ 8.
4. What are the challenges of discussing the mental health implications around GAC with patients during therapy?
Discussing the mental health implications of GAC with patients is an important part of providing comprehensive care. APA has Guidelines for Psychological Practice with Transgender and Gender Nonconforming People (PDF, 461KB)opens in new window. These guidelines remain important in their emphasis on the importance of culturally competent, developmentally appropriate, and transaffirmative psychological practice with transgender and gender nonconforming individuals.
Legal concerns around therapy will depend on the applicable state’s specific anti-GAC laws. In states like Ohio and Utah, which regulate how psychologists may address gender dysphoria in therapy, psychologists must be mindful of those requirements that may mandate certain evaluations, limit treatment options, or require additional provider training. Providing therapy would seem the lowest risk in states that explicitly exclude mental health services from their GAC restrictions. States that focus on regulating medical interventions only, without provisions that could be interpreted as extending to psychologists through a patient’s access to medical GAC (see FAQ 3.A), would also appear to pose a lower risk.
Mental health professionals should be familiar with informed consent requirements not only as outlined in any specific state’s GAC laws (e.g. Ohio), but also in general situations where parental consent is required for mental health treatment of minors. Each state has its own legal framework around parental consent for mental health treatment of minors. To address this, therapists working with minors could consider including a specific section in their informed consent form that clarifies how they handle confidentiality with parents or guardians, especially concerning gender issues.
In any state, psychologists should remain focused on providing competent and ethical care to transgender and gender-diverse youth, while also following their state’s law. Psychologists should continue to:
- Maintain an appropriate professional role by focusing on the emotional, family, cultural, and mental health issues patients may experience when contemplating GAC.
- As always, not make or suggest GAC decisions for patients, but instead help them work through potential options to make decisions that are best for them.
Carrying out these tenets of psychological care is not only best for the patient but would also seemingly reduce the possible risk of allegations that you aided, induced, or encouraged a patient in obtaining prohibited GAC services.
5. What are considerations for psychologists providing more direct involvement in a patient’s pursuit of gender-affirming medical care, such as providing a diagnosis, evaluation, or referral to a medical provider?
Another way psychologists may be involved in a patient’s medical GAC is by providing an assessment or diagnosis that may be used in determining the patient’s eligibility for medical GAC. This might include a diagnosis of gender dysphoria and/or an assessment of the minor’s mental/emotional state for making decisions around GAC.
Such involvement would increase your risks, especially in states with “aiding or abetting” or similar provisions creating liability for a psychologist’s role in a patient’s effort to obtain medical GAC, as discussed in FAQ 3.
Other examples of more direct engagement could include coordinating with, or referring to, a medical provider for medical GAC.
Concerns about risk exposure may differ based on the state(s) in which a psychologist is licensed and practicing. The state where the patient is located determines the controlling law(s) to which the psychologists should adhere. Arguably, in states with GAC bans including “aiding and abetting” provisions, psychologists should be mindful of their legal and ethical obligations as they consider engaging in more direct involvement with minors obtaining medical GAC.
6. Are there certain factors that make certain state GAC laws more concerning, such as unique aspects of the GAC law itself or aggressive enforcement of the law?
Several aspects of some state anti-GAC laws raise concerns for psychologists. Here are some key considerations about which to be aware:
Vague language: Some states, like Mississippi and Idaho, use ambiguous terms like “promoting” or “endorsing” GAC without clearly defining the terms. This ambiguity makes it difficult for psychologists to understand what actions might be considered a violation. Ohio’s law, for example, defines “gender-related condition” broadly, without clearly explaining the scope of the term. This raises concerns for psychologists because the law prohibits “treating a minor for a gender-related condition” without following certain steps. This makes it unclear what activities psychologists can engage in without violating the law.
Aiding and abetting: As discussed in FAQ 3, certain anti-GAC laws attempt to expand liability beyond those directly performing prohibited care. Such “aiding and abetting” provisions, existing in civil and criminal state laws, raise concerns about psychologists being targets even when not directly providing medical care involving surgery or prescriptions.
Out-of-state GAC: Some GAC bans, like that of Iowa, appear to only target medical GAC procedures performed by in-state medical professionals. Therefore, if a psychologist provided an evaluation for a patient pursuing GAC in a “safe” state, this activity would presumably not be covered by the ban. However, other states, such as Idaho, do not specify whether the banned care must be performed in the state, raising the question about whether the state legislature is attempting to restrict activities related to patients seeking GAC out-of-state where such care is legal. See FAQ 9 for more information about serving patients across state lines.
Aggressive prosecutors and attorneys general
The above legal concerns are heightened when prosecutors and attorneys general state their intentions to aggressively enforce anti-GAC laws in ways that could potentially create a chilling effect on psychologists who provide, or seek to provide, care for transgender or gender diverse individuals. Limited legal guidance exists on how courts will approach these laws, including how they will interpret vague terms and apply “aiding and abetting” provisions.
APA is closely monitoring not only court challenges to both antiabortion and anti-GAC state laws, but also interpretations and guidance issued by state agencies and attorneys general in anticipation that a comprehensive approach may emerge that will provide relevant guidance for psychologists.
7. Do any states specifically require mandated reporting if a practitioner has knowledge that a patient is receiving banned gender affirming care?
At the time of publication, no GAC law specifically mandates that a psychologist report that a patient has sought or obtained prohibited GAC procedures. Nor do any current laws define GAC as child abuse to trigger mandatory abuse reporting. APA is closely monitoring whether any state attempts to require mandatory reporting in connection with GAC.
8. What are shield laws and may a state that bans or restricts GAC bar patients from obtaining these services in a “safe” state?
Many states have taken steps to create safe havens through “shield laws” for transgender children, their families, and their doctors. Shield laws aim to create a “safe haven” for individuals and health care providers by “shielding” them from extradition, civil lawsuits, investigations, and professional discipline based on activities related to GAC that are legal in the state where the care is received or provided. Like shield laws for abortion, the approach of states with GAC shield laws is generally to thwart a state’s efforts to penalize those providing, facilitating, or receiving gender-affirming treatments in states where that care for children is legal, and to protect in-state providers.
For example, Illinois’ Gender Affirming Healthcare Equity Act prohibits state agencies from cooperating with out-of-state GAC investigations or arrests because GAC is legal in Illinois. New York has also passed protective legislation that includes prohibiting local law enforcement from cooperating with requests from other states pursuing individuals who have received or provided legal GAC in New York.
While shield laws may protect psychologists from legal investigations, depending on the specific facts and circumstances, such laws do not guarantee protection from state licensing board investigations or PSYPACT-related procedures by the PSYPACT Commission.
To what extent may a state that bans GAC services control the provision of GAC treatment in a safe state?
Generally, a state’s jurisdiction to control activities is confined to its own territory. Accordingly, a state cannot directly prohibit, regulate, or punish individuals for providing or receiving GAC in another state where it is legal. This issue, however, becomes more nuanced when considering “aiding and abetting” activities in a banned state such as if a psychologist in a banned state diagnoses, assesses, or refers a patient to a GAC medical provider in a different state where such GAC is legal. If the GAC ban includes an aiding and abetting component, a state may try to hold the psychologist accountable, arguing that the aiding and abetting is the prohibited conduct in the banned state.
Like the legal landscape surrounding antiabortion state laws, the extent to which a state may enforce bans against patients obtaining GAC in safe states remains uncharted. APA is monitoring the situation as it unfolds.
9. What are considerations for psychologists providing telehealth services via PSYPACT from a state with no restrictions to a state that bans GAC?
When serving patients across state lines by telehealth under PSYPACT or temporary practice provisions, psychologists should understand the law where the patient is located. The PSYPACT Commission has stipulated that under PSYPACT the state where the patient is located could impose its requirements regarding public health, safety, and welfare on the practicing out-of-state psychologist.3 Since most state anti-GAC bans assert health and safety concerns for minors, a state might argue that the GAC ban applies to the state where the minor patient is located and could conceivably file a complaint against the psychologist with the PSYPACT Commission.
The regulatory boards for the individual PSYPACT member states have the power to revoke a psychologist’s Authority to Practice Interjurisdictional Telepsychology (APIT) within that state, if the board deems such revocation is necessary to protect the health and safety of the citizens within a state.4 This adverse action would be reported to the PSYPACT Commission, which would notify other PSYPACT member states and affect your ability to practice via PSYPACT in those states as well. Arguably, such a revocation would not just apply to the state that complained, but in all PSYPACT states.
As noted above, while state shield laws may protect psychologists from discovery by prosecutors and other investigators in certain situations, such laws may not necessarily protect psychologists from state licensing board investigations or PSYPACT-related procedures by the PSYPACT Commission.
10. What happens if a state that restricts or bans gender affirming care seeks mental health records from a psychologist concerning a patient who received or is planning to receive medical GAC?
Generally, patient records or information may be handed over in response to a subpoena with patient consent only. In most states, there is a psychotherapist-patient privilege. In response to court orders seeking patient records or information, a psychologist may be able to assert the privilege because it could provide grounds for not divulging the patient’s information. You are also strongly encouraged to contact your malpractice carrier. We also suggest that you contact your SPTA, especially in the unlikely event that a prosecutor or investigator is able to obtain a court order directing you to produce patient information despite the privilege (if it exists in your state).
11. Do any of the laws make exceptions or allow for any flexibility in accessing medical GAC?
Several laws include exceptions for certain medical circumstances including for minors with early onset puberty or a verifiable disorder of sex development. A few states, such as Florida, Missouri, Montana, North Carolina, among others, grandfathered in individuals already receiving gender-affirming treatments so they may continue their care without interruption. However, most of these exceptions are limited. In South Dakota, minors with existing hormone prescriptions before July 1, 2023, were allowed to continue receiving treatment through the end of 2023—with the expectation that medical providers “systematically reduce[d]” their prescriptions over that period.
12. Should any of the concerns expressed above related to mandatory reporting and patient record investigations affect my record-keeping practices when providing therapy with patients about gender issues and GAC?
While maintaining accurate and detailed records is often important for patient care, legal situations, and quality assurance, the current climate of mandatory reporting concerns and potential investigations related to GAC can create a dilemma for psychologists regarding record-keeping practices when discussing gender issues with patients, especially if there is a risk of the patient’s records being sought in connection with investigations under statutes targeting medical GAC.
As with other situations where a patient may be put at risk by the psychologist putting certain details in their record, you should consider the potential impact on patients of your describing in the record discussions with them about gender issues. Currently, the risk of patient records being obtained by state prosecutors, attorneys general, or licensing boards is unpredictable. Patients might be hesitant to disclose sensitive information about seeking GAC or related issues if they fear that such information in their records could be accessed by third parties. This, in turn, could hinder the therapeutic process. Keeping only essential information in the records might minimize the potential for investigations or legal challenges, especially in states with restrictive GAC laws.
At the same time, complying with state and federal record-keeping is essential. Remember to discuss your record-keeping practices and any potential mandatory reporting with your patients.
For more information about anti-GAC state legislation and litigation, contact the Office of Legal and State Advocacy.
