Bill to ban gender-affirming surgeries for minors spurs pushback from parents, providers

Michelle Cilley Foisy, whose child Jack is transitioning, appeared in Concord to testify against a bill to prohibit gender-affirming surgeries for minors.

Michelle Cilley Foisy, whose child Jack is transitioning, appeared in Concord to testify against a bill to prohibit gender-affirming surgeries for minors. Ethan Dewitt / New Hampshire Bulletin

 Rep. Erica Layon, a Derry Republican, speaks in favor of legislation to ban gender-affirming surgeries for minors in New Hampshire, on Oct. 31.

Rep. Erica Layon, a Derry Republican, speaks in favor of legislation to ban gender-affirming surgeries for minors in New Hampshire, on Oct. 31.


New Hampshire Bulletin

Published: 11-06-2023 5:54 PM

Long before the conversation, Michelle Cilley Foisy had known her child Jack was not happy.

Jack had withdrawn since the outbreak of COVID. They had experienced intense migraines since January, and had shared thoughts of suicidal ideation since March. 

But it took a long car ride this July for Foisy to learn the full picture. Avoiding eye contact, Jack, 16, opened up: They did not feel comfortable identifying as male, and they had felt this way for years. They wanted to transition. 

In her head, Foisy matched up the new information to her experiences in the last months – the migraines, the long hours spent in the bedroom, the disinterest in soccer and friends. In the car, she let Jack talk.

“I’m a very open mom,” said Foisy, a mom of six and an experienced physical therapist. “So I just sat and listened.” The approach seemed to help.

“I remember them saying, ‘I can’t believe that I’m saying these things to my mom. And I can’t believe that you’re so comfortable with this. And I can’t believe you’re asking me the questions that you are.’” 

When the car ride ended, a weight was lifted. Then the work began: new conversations with Jack’s counselor and an appointment with a Dartmouth-Hitchcock endocrinologist to discuss hormone therapy. 

Months later, Jack, who declined to be interviewed but allowed their mother to speak for them, is on a path toward happiness and self-realization, Foisy says. But a newly proposed bill has the Temple mother worried.

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New Hampshire lawmakers are working on legislation that would prohibit physicians in the state from providing gender-affirming surgery to people under 18. The bill, House Bill 619, would also bar New Hampshire providers from referring patients to facilities outside of the state that could provide those surgeries.

An amendment to the bill, introduced Oct. 25 by Rep. Erica Layon, a Derry Republican, would block public funds from being given “directly or indirectly” to organizations or individuals that provide gender-affirming surgeries to minors. 

It would bar the state Medicaid program from reimbursing for any such surgeries to minors, and stop private insurance companies operating in New Hampshire from reimbursing for those surgeries as well.

Separately, the bill would change the definition of “conversion therapy,” which the state outlawed in 2018. Currently the law bars practices “that seek to change an individual’s sexual orientation or gender identity”; the proposed change would specifically ban “attempts to compel” an individual to change their orientation. The change would also make “de-transitioning” an exception to the ban.

Supporters of the bill say it halts a type of medical procedure they argue is harmful to children. Addressing the committee, Layon said the ban is necessary while more research is done to determine the safety of the surgeries.

“Is this something that we should be doing in this state?” Layon said in testimony. “Or should we allow the science to proceed without us, with those who really need to seek it going to other states and the people at this state waiting for more data so that they know the long-term outcomes?” 

But health care providers, psychiatrists, and LGBTQ advocates have called the bill an attack on transgender rights and warned that banning the procedures will put some teenagers in precarious situations that could lead to suicide. The bill is opposed by the New Hampshire Medical Association, the New Hampshire Hospital Association, the National Alliance on Mental Illness New Hampshire (NAMI), the New Hampshire Psychological Association, the National Association of Social Workers New Hampshire, and other groups including GLBTQ Legal Advocates and Defenders (GLAD) and the American Civil Liberties Union of New Hampshire.

Opponents have also objected to the change to the statutory language around the conversion therapy ban, which they say could allow some therapists to attempt to skirt the law. Layon has said the change is meant to prevent confusion among providers over what the conversion therapy ban covers.

In testimony before the committee, Layon said the bill is not intended as an attack on the transgender community, but as a guardrail. 

“This amendment and the bill that it replaces do not seek to erase you,” she said, addressing transgender teenagers. “We do not seek to invalidate your experience. This effort is to prioritize your lifelong health and well-being by pumping the brakes on the rapid adoption of this medical care for your age group.” 

The bill was held back by the House Health, Human Services and Elderly Affairs Committee in March, allowing it to stay in the committee and did not receive a vote on the House floor. Members of that committee are planning to hold meetings on the bill and vote on it sometime in November. The full House will then take it up for a vote in January.

To opponents, the bill would outlaw a rarely deployed procedure that can help adolescents in extreme cases of gender dysphoria assume a healthy life.

“Simply put, gender-affirming care works,” said Sam Hawkins, of NAMI-NH. “It saves lives and enhances the well-being of those who need it.” 

Courtney Tanner, senior director of government relations at Dartmouth Health, which provides gender-affirming care to minors in the state, said the hospital group’s policy is to not offer the surgeries to those under 18, except in medically necessary circumstances. 

Chris Erchull, an attorney for GLAD, noted that the surgeries are relatively rare. When they do happen, he argued, they are necessary. GLAD has represented teenaged patients who desire surgeries in court; in one case, Erchull said, the child wanted to undergo the procedure with the support of their family before they headed off to college.

James Bomersbach, the legislative committee chair of the New Hampshire Psychological Association, said that while gender-affirming surgery is an emerging area of care, banning it would only prevent its development. 

Many Republican lawmakers have supported the bill, which echoes laws passed in 20 other states, according to a September tally by U.S. News and World Report.

“While we as legislators shouldn’t be mandating what adults can and can’t do, it is our duty to help protect people from malpractice,” argued Rep. Alicia Lekas, a Hudson Republican and co-sponsor of the bill. 

Some supporters have pointed to cases in which people who pursued surgery and other care to transition later regretted the decision. Erchull rejected that concern.

“If you’re suggesting that it was better to prevent people from getting health care that they need because there might be a small percentage of the people who end up regretting the health care that they need, that I would disagree with you,” he said in response to a lawmaker’s question.

For Jack, the bill would not prevent hormone replacement therapy; the legislation is specific to surgeries. But Foisy says she doesn’t know what Jack might need in the future, and she worries a ban could impede their path forward. 

Getting that care can be a matter of life and death for some children, Foisy said, raising the risk of suicide. 

“How is it better to say: ‘Well, no, this surgery that you’re going to have – you may regret this in several years,’ versus: ‘We’re having a funeral now because my child is gone. My child couldn’t survive the turmoil inside of them. Feeling like they’re in a body that doesn’t represent who they are,’” she said.

Last month, when Jack went to their endocrinology appointment to talk about hormone replacement, they were nervous and didn’t say much. Foisy did most of the talking. 

After they left, Jack had brightened. Foisy took Jack to the mall to buy new clothes. She knew they weren’t comfortable in the ones they had.

“They said to me that evening: ‘I never knew that going to the endocrinologist and going to the mall could be so exciting,’” Foisy said. “And then the next morning, they said to me, ‘I haven’t smiled at myself in the mirror in years. And I was just able to.’”

IF YOU OR SOMEONE YOU KNOW is in a crisis, call, text or chat the Suicide and Crisis Lifeline at 988. To reach the New Hampshire Rapid Response Access Point, call or text 833-710-6477. If you need help with grief and loss, the American Foundation for Suicide Prevention offers advice and resources. You can also call the National SAMHSA Helpline, 1-800-662-HELP, with services in English and Spanish, toll free 24/7.