Florida "Reverse Woke" Act Tries To End Adult Trans Healthcare Coverage

Florida is the latest state attempting to target transgender adults. The new "Reverse Woke" act would make companies liable in perpetuity for detrans care if they cover trans healthcare.

Florida has become well-known as one of the worst states for anti-trans policies in recent years. After failing to pass a ban on gender affirming care for transgender youth, Governor Ron DeSantis used a handpicked Board of Medicine to enforce the same ban. Additionally, the state has cut Medicaid coverage for gender affirming care for transgender adults, and the 11th Circuit Court of Appeals recently ruled that schools can discriminate against transgender students regarding bathroom access. While the number of anti-LGBTQ+ bills proposed in Florida this year has been lower than expected during the start of this year, activists have been anticipating an increase. Now, the "Reverse Woke Act" has emerged as one of the first anti-trans bills in Florida of the 2023 legislative cycle. This bill would hold employers accountable for the detransition of any person who receives gender affirming care coverage for the rest of their life, potentially deterring coverage for many transgender adults in Florida.

The bill creates an impossible requirement for companies: if they provide health insurance coverage for gender affirming care, they are responsible for any procedures to reverse that care for the entirety of the individual's life. As there is no set time limit for this liability and the mandate extends to "any benefits" that cover gender affirming care, companies may conclude that the risk of offering such coverage is unacceptably high. Relevant provisions are included below:

Section 2 and 3 of the “Reverse Woke” act

The provisions are ridiculously broad and lack precedent in law. If an individual undergoes a surgical procedure, such as a knee operation, and later regrets it or desires to modify it, no employer is liable for it a decade later simply because the company's health insurance covered the surgery. That liability is between the patient and the doctor, and often would carry some form of statute of limitations. This not only extends the statute of limitations to perpetuity, it targets the employers just for having health insurance that covers gender affirming care. This targeting of the company itself for the procedures covered under its health insurance is designed to get companies to drop that care.

The bill may conflict with federal law, specifically the Employee Retirement Income Security Act (ERISA), which places significant restrictions on how states can regulate private employee plans. Florida's "Reverse Woke" act appears to be an effort to circumvent these restrictions and could potentially be used to restrict other forms of care, such as abortion, as stated by Harvard Clinical Law Instructor Alejandra Caraballo:

Alejandra Caraballo @Esqueer_

I'll also add that this raises significant preemption issues with large self-funded plans that are covered by ERISA. States cannot regulate ERISA plans and this seems like an end run to do so. This could easily be used to end coverage of abortion care as well.

Florida is not the only state that has targeted adult health insurance in recent months. We have seen somewhat similar bills pop up in Tennessee and Texas. Texas SB1029, introduced on February 17th, seeks to make health insurance plans strictly liable for all claimed “gender affirming care damages” for life if they offer that care without limitations. It also targets doctors offering that care by making them liable for malpractice. Taken together, they are designed to deter the provision of gender affirming care by both health insurers and doctors past the point of feasibility. Tennessee’s HB1215 would make any health insurance company that contracts with TennCare not offer coverage for gender affirming care. Both of these bills target transgender adults, not just trans youth.

Several states this year have also targeted transgender adults in outright bans of care, although most of those bans have not progressed very far. Oklahoma originally had a bill that would ban gender affirming care up to 26 years old but has since walked the bill back to a ban for trans youth under 18. Recently, Kansas heard a bill that would ban gender affirming care up to the age of 21 years old and may vote on the bill in coming weeks. South Carolina has proposed similar legislation that would ban care up to 21 years old, though this bill has yet to receive a hearing. It is important to note that shifting the focus of these bills to adults represents a shift in the Overton Window, which aims to move closer to outright bans on all gender-affirming care while making it easier to pass bans for trans youth.

It is also important to note that targeting gender affirming care financially is a new front for the anti-trans right, and it is being embraced by leading anti-trans candidates and politicians. Donald Trump specifically outlined several ways he would do this if he achieved the presidency in a recent video: ending taxpayer dollars to care, declaring hospitals and healthcare providers as liable for lawsuits, and investigations into care providers and manufacturers of the medication used to provide gender affirming care. Ken Paxton of Texas has announced investigations into pharmaceutical companies for puberty blockers. Republicans are doing everything they can to make care illegal, and in places where they cannot make that care illegal, they want to make it financially impossible.

It remains uncertain what the future holds for the "Reverse Woke" act. If successful, the bill could result in tens of thousands of transgender adults losing coverage for gender affirming care because companies may consider it too risky to provide such coverage. As one of the first proposed anti-trans bills of this legislative cycle, it will be important to monitor whether it marks a new front in a state that has already enacted extremely stringent laws affecting LGBTQ+ residents. Given that “woke” in this act is synonymous with “transgender,” efforts to “remove woke from Florida” seem especially dark given recent legislation targeting the trans community.