Arizona's Gender-Affirming Care Ban for Transgender Youth May Regulate Referrals

State lawmakers in Arizona recently enacted a gender-affirming care ban that restricts care for transgender youth. To date, more than half of U.S. states have considered or approved policies or legislative bills banning gender-affirming care for minors.¹ This article addresses whether Arizona’s new law, A.R.S. § 32-3230, prohibits physicians from referring trans youth patients to out-of-state physicians for irreversible gender reassignment surgery.²   

The Arizona law, which became effective March 31, 2023, prohibits physicians from providing irreversible gender reassignment surgeries to individuals under 18 years old. Because the law does not explicitly permit referrals for the banned care, the law creates uncertainty for Arizona physicians who may want to refer minors to gender-affirming care in other states. Physicians and health care providers should exercise caution because it is possible that the medical board could interpret the law to prohibit referrals to obtain gender-affirming care for minors. 

The Arizona Statute Arguably Does Not Ban Referrals but the Arizona Medical Board Could Interpret the Statute to Ban Referrals 

The Arizona statute states, “[a] physician may not provide irreversible gender reassignment surgery to any individual who is under eighteen years of age” unless the surgery qualifies under one of the listed exceptions.³ The statute also provides a definition for “irreversible gender reassignment surgery” that lists specific procedures that the statute bans.⁴

Although the statute does not explicitly ban referrals, the statute bans physicians from providing irreversible gender reassignment surgery. Because it is not clear from the text of the statute whether providing encompasses referrals, a court would likely find that the statute is ambiguous. Such ambiguity permits courts to use other methods of statutory interpretation, including reviewing the legislative history to determine legislative intent. The legislative history of A.R.S. § 32-3230 supports a finding that the legislature did not intend to prohibit referrals when it enacted the statute. Accordingly, a court interpreting the statute would have a legitimate basis to find that the statute does not ban physicians from referring minor patients for gender reassignment surgery. 

 Whether the statute bans referrals hinges on the meaning of the phrase “may not provide irreversible gender reassignment surgery.” To interpret an undefined word, such as provide, courts may refer to dictionaries.⁵ The dictionary meaning of provide is “to make something available.”⁶ Such a definition is broad, leading to multiple reasonable interpretations of the statute.⁷ One reasonable interpretation is that “provide” encompasses referrals for irreversible gender reassignment surgery because referrals “make [the surgery] available,” albeit indirectly. However, another reasonable interpretation is that “provide” refers to the acts that directly make the surgery available, such as performing the irreversible gender reassignment surgery and ancillary surgical services.  

Because the meaning of “provide” is susceptible to multiple reasonable interpretations, a court would likely find that the statute is ambiguous.⁸ When a statute is ambiguous, courts may consider the statute’s legislative history.⁹ “Legislative intent can often be discovered by examining the development of a particular statute.”¹⁰ 

Here, the statute’s journey through the legislature demonstrates that the legislature did not intend to ban referrals for irreversible gender reassignment surgery. As originally introduced, Senate Bill 1138 stated: “A physician … may not provide gender transition procedures to any individual who under eighteen years of age”; and “A physician … may not refer any individual who is under eighteen years of age to any health care professional for gender transition procedures.”¹¹ Because the introduced bill explicitly banned referrals and banned providing gender reassignment surgeries, the legislature must not have thought that “may not provide” gender reassignment surgeries encompassed referrals for such surgeries.¹²   

Before approving the bill, the senate removed the clause, “A physician … may not refer any individual who is under eighteen years of age to any health care professional for gender transition procedures.” Courts may infer that that the removal of a means of violating a statute signals the legislature’s intent to exempt such conduct from the scope of the statute. The removal of the ban on referrals signals the legislature’s intent to exempt certain conduct from the scope of Senate Bill 1183.

To accept any argument that “perform” encompasses referrals, a court would have to find that the amendment to Senate Bill 1183 removing referrals was purely formal, without any substantive effect. Such a finding would run against a rule of statutory construction that alterations in the language of a statute demonstrates an intent to change the law.¹³ Based on the strike of the ban on referrals, the legislature arguably rejected the ban on referrals for irreversible gender reassignment surgeries.¹⁴   

Additionally, when the Arizona House of Representatives reviewed the statute as amended and approved by the Senate, i.e., without the ban on referrals, it interpreted the statute to “[p]rohibit[] physicians from performing irreversible gender reassignment surgeries on minors,” not referring patients for surgery.¹⁵ Such history and summaries suggest that the legislature intended only to ban physicians from performing irreversible gender reassignment surgeries on minors, not to ban referrals. There is no guarantee the Arizona Medical Board will adopt the same interpretation in this article, and any adverse action by the Arizona Medical Board for a referral may need to be challenged in court. 

Conclusion 

Because the statute is susceptible to multiple reasonable interpretations, a court interpreting the statute would likely find ambiguity. A court may then use secondary methods of interpretation, such as legislative intent. The successive drafts of A.R.S. § 32-3230 (the Arizona statute) suggest that the legislature did not intend to prohibit referrals for minor patients. Accordingly, a court would be on solid ground in holding that physicians do not violate the statute by providing referrals to minor patients for irreversible gender reassignment surgery even were the Arizona Medical Board to find otherwise.

^{1 https://www.hrc.org/resources/attacks-on-gender-affirming-care-by-state-map}

^{2 Prior to enacting A.R.S. § 32-3230, the Arizona legislature criminalized a health care professional providing the following sex reaffirming care to minors: (1) surgeries that sterilize; (2) mastectomy; (3) medications that block puberty, doses of testosterone to females, estrogen to males; or (4) removal of any otherwise health or nondiseased body part or tissue. A.R.S. § 13-3623(E). This criminal statute does not criminalize referrals.}

^{3 A.R.S. § 32-3230(A) (emphasis added).}

^{4 Id. at §32-3230(C)(4).}

^{5 State v. Wise, 137 Ariz. 468, 470 n.3 (1983).}

^{6 Merriam-Webster.com Dictionary, s.v. “provide,” accessed February 13, 2023, https://www.merriam-webster.com/dictionary/provide.}

^{7 If the legislature had meant “perform,” it could have used that term instead of “provide.”}

^{8 See Stein v. Sonus USA, Inc., 214 Ariz. 200, 201, ¶ 3 (App. 2007) (stating a statute is ambiguous if the meaning or interpretation of its terms is uncertain, subjecting it to more than one reasonable interpretation).}

^{9 See id.}

^{10 Carrow Co. v. Lusby, 167 Ariz. 18, 20 (1990).}

^{11 See S.B. 1138, Introduced Version, 55th Legis., 2d Reg. Sess. (2022).}

^{12 At the Senate Health and Human Services Committee hearing, the deciding vote on rejecting the introduced version of Senate Bill 1183 commented that he would vote only to proceed on a bill that prohibited gender reassignment surgeries. The Committee passed the bill after the sponsor removed the ban on referrals and limited the ban to specific reassignment surgeries. However, at the committee as a whole hearing, a legislator raised a concern that the phrase “may not provide” banned counseling for gender reassignment surgery and the procedures themselves. Although these comments provide some insight, “the expressed intent of several congressmen is not necessarily determinative” of legislative intent. Hernandez-Gomez v. Leonardo, 185 Ariz. 509, 513 (1996).}

^{13 In re Paul M., 198 Ariz. 122, 126, ¶ 12 (App. 2000).}

^{14 See State v. Barnard, 126 Ariz. 110, 112 (App. 1980) (explaining that successive drafts may be instructive in determining the intent of the legislature).}

^{15 See March 7, 2022 House Summary, 55th Legis., 2d Reg. Sess. (2022).}