Document Type

Student Paper

Publication Date

2025

Comments

Because gender-affirming care is both a politically contested issue and a medically recognized course of treatment, courts and medical malpractice insurers face the question of what standard of care physicians owe to gender-diverse patients. In general, the standard of care is defined as care that is competent among similar medical providers under similar circumstances. However, utilizing that standard in the context of gender-affirming care is influenced by the provider’s view of gender itself. If a healthcare provider understands gender as socially and biologically co-constructed while acknowledging gender variance/diversity within biology, the standard of care will emphasize affirmation and access; if the provider sees gender as a binary that is exclusively biologically determined and recognized at birth, refusal to treat or limited treatment is likely to be appropriate.

This paper examines how competing views of gender can impact determining breach in medical malpractice claims involving gender-affirming treatment, including claims based on negligence, lack of informed consent, and refusal to treat. It further analyzes how medical malpractice insurance shapes clinical practice through coverage decisions, assessments of medical necessity, and reimbursement policies. As insurance markets increasingly influence which forms of gender-affirming care are available in practice, coverage rules both reflect and reinforce prevailing medical standards. Aligning tort doctrine, medical ethical guidance, and insurance regulation is therefore essential to ensuring that legal duties of care remain consistent with contemporary medical understanding and provide stable access to gender-affirming treatment.

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