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The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in the article.
In this article, Bradley J. Muldrow, JD provides an overview of key legal and ethical issues therapists should consider when writing referral letters for patients seeking gender affirming medical and surgical treatments. He also discusses information therapists may wish to consider including in those letters.
Bradley J. Muldrow, JD
Updated March 2023 by Bradley J. Muldrow (CAMFT Staff Attorney)
Over the years, CAMFT has received numerous calls from therapists whose patients have asked them to write referral letters for gender affirming medical and surgical treatments. These practitioners are often eager to support their patients, but concerned about the legal and ethical implications of writing such letters.
CAMFT has issued a statement addressing how therapists can assist transgender and gender diverse1 (collectively “TGD”) people struggling with mental health challenges2. Writing gender affirming medical or surgical treatment referral letters in appropriate circumstances is an important form of support therapists can offer TGD patients in need of such treatment. This article will discuss legal and ethical issues therapists should consider before writing such letters.
What is Gender Dysphoria?
Gender dysphoria is a DSM-5 recognized mental health condition characterized by "the feeling of discomfort or distress that might occur in people whose gender identity differs from their sex assigned at birth or sex-related physical characteristics."3 This condition was previously referred to as “gender identity disorder.”4 However, the medical community has shifted towards using the term gender dysphoria to clarify that gender dysphoric patients’ feelings of discomfort are the medical concerns in need of treatment (as opposed to the patients’ identities).5
Not all TGD people experience gender dysphoria.6 That said, as the following section will address, individuals who do experience gender dysphoria often seek to reduce or eliminate their symptoms by undergoing gender transition processes.7
Understanding Your Patient’s Gender Transition Process
Per the University of California, San Francisco's Transgender Care Program, "[g]ender transition is a very private, personal, and individualized process."8 An individual’s gender transition process may include a social transition and/or a medical transition.
An individual’s social transition may include experiences and milestones such as:
An individual’s medical transition may include medical treatments and processes such as:
This article will primarily address legal and ethical issues therapists should consider when working with TGD patients who are pursuing gender affirming surgeries as part of their medical transitions. However, therapists should also consider the following preliminary issues:
Practice Pointer 1: Medical Transition is Not a Part of Every Transgender or Gender Diverse Patient’s Gender Transition Process
Gender transition is a personal process that is different for every individual. Not every patient’s transition process will include surgeries or other medical procedures. Therapists should take care to understand their patients’ unique gender transition processes and avoid assumptions about what will be involved in those processes.
Practice Pointer 2: Medical Transition Does Not Validate a Patient's Gender Transition
Therapists should also avoid the misconception that gender affirming surgeries and other medical treatments validate an individual’s gender transition. For example, it would not be prudent for a therapist to wait until a patient has undergone a gender affirming surgical treatment to begin referring to the patient by pronouns reflecting their gender identity.
Gender-Affirming Surgical Treatments
In the past, gender affirming surgeries were more commonly referred to as gender “reassignment” surgeries. However, in recent years, patients and healthcare professionals have begun to move away from that term as it implies that the procedures are intended to change patients’ genders as opposed to affirming or confirming the genders with which the patients identify.11 Today, patients and medical professionals typically refer to these surgeries as “gender-affirming”12 surgical treatments (the term that will be used in this article) or “gender-confirming”13 surgical treatments.
Many medical facilities base their policies and procedures for performing gender-affirming surgeries on WPATH’s Standards of Care for the Health of Transgender and Gender Diverse People, Version 8.14 Similarly, health plans typically refer to WPATH’s standards of care when determining whether to cover gender affirming surgeries for their insureds.15,16 The following section will discuss WPATH’s guidelines for providing patients with referral letters for gender affirming surgical treatments.
Providing Referral Letters for Gender-Affirming Medical and Surgical Treatments
What is WPATH?
WPATH is a nonprofit professional and educational association that focuses on "promot[ing] evidence-based care, education, research, public policy, and respect in transgender health."17 The organization publishes Standards of Care for the Health of Transgender and Gender Diverse People (hereafter the ”SOC”).18 Per WPATH, the SOC
: ...articulate a professional consensus about the psychiatric, psychological, medical, and surgical management of gender dysphoria and help professionals understand the parameters within which they may offer assistance to those with these conditions.19
WPATH’s SOC: Assessment of TGD Adult Patient’s Seeking Gender-Affirming Medical and Surgical Treatments
Chapter five of the SOC covers WPATH’s recommendations for health care practitioners assessing TGD adult patients seeking medically necessary gender-affirming medical and/or surgical treatments. Per WPATH, “The criteria in this chapter have been significantly revised from [the previous edition of the SOC (i.e. the seventh edition)] to reduce requirements and unnecessary barriers to care.”20
Statement 5.1 of the SOC includes recommendations for health care practitioners assessing TGD adults for gender affirming physical treatments.21 This information may significantly benefit therapists performing such assessments. However, this section of the article will focus on WPATH’s recommendations for health practitioners assessing TGD patients for gender-affirming medical and surgical treatments, as outlined in Statement 5.3 of the SOC. WPATH provides the following recommendations for practitioners performing such assessments:
For additional unformation and context regarding these recommendations, See State 5.3 of the SOCa (within chapter five of the document).
WPATH’s SOC: Writing Referral Letters for TGD Adult Patients Seeking Gender-Affirming Medical and Surgical Treatments
Statement 5.5 of the SOC includes WPATH’s recommendation that TGD adult patients “who fulfill the criteria for gender-affirming medical and surgical treatment require a single opinion for the initiation of this treatment from a professional who has competencies in the assessment of transgender and gender diverse people wishing gender-related medical and surgical treatment.” 23 However, WPATH notes that “[f]urther written opinions/signatures may be requested where there is a specific clinical need.”24
The current version of the SOC does not offer specific recommendations regarding the content of referral letters for gender-affirming medical and surgical treatments. This shift may reflect WPATH’s intention to reduce barriers to care for TGD people by affording providers greater discretion and flexibility when writing referral letters. That said, the SOC recommend that referral letters be written by practitioners with “competencies in the assessment of transgender and gender diverse people wishing gender-related medical and surgical treatment.” 25 Accordingly, providers who wish to write referral letters for these procedures must ensure that doing so is within their scopes of competence.
Providers who are unsure of what to include in referral letters for gender-affirming medical and surgical treatments may want to consider addressing in their letters how their assessments of their patients satisfy the assessment recommendations discussed in the previous section (as applicable). Moreover, if applicable and appropriate, providers may wish for their letters to address some of the referral letter content recommendations included in the previous edition of the SOC (i.e. version seven):
Practitioners should be aware that the health facilities and/or plans requesting referral letters for gender-affirming medical or surgical treatments may have their own content requirements or expectations for the letters. Prior to writing such referral letters, providers should work with their patients, their patients’ health plans, and/or the physicians who will be providing the medical or surgical treatments to determine what information needs to be included in the referral letters.
WPATH’s SOC: Assessment of TGD Adolescent Patients
WPATH recommends that health care professionals working with gender diverse adolescents:
For additional information and context regarding these recommendations, See Statement 6.1 of the SOC (within chapter six of the document).
WPATH’s SOC: Writing Referral Letters for TGD Adolescent Patients Seeking Gender-Affirming Medical and Surgical Treatments
Per Statement 6.12 of the SOC, WPATH recommends that health care professionals assessing TGD adolescents only recommend gender-affirming medical or surgical treatments sought by the patients if the following criteria are met:
For additional information and context regarding these recommendations, See Statement 6.12 of the SOC (within chapter six of the document).
The current version of the SOC does not include specific recommendations regarding the content of referral letters supporting TGD patients seeking gender-affirming medical or surgical treatments. However, in its explanation of Statement 6.9, WPATH provides: “[i]f written documentation or a letter is required to recommend gender-affirming medical and surgical treatment…for an adolescent, only one letter of assessment from a member of the multidisciplinary team is needed.” However, the letter must reflect the assessment and opinion of the team, including both medical and mental health professionals.29 Moreover, WPATH states “[f]urther assessment results and written opinions may be requested when there is a specific clinical need or when team members are in different locations or choose to write their own summaries.”30
Practitioners who are unsure of what to include in their referral letters for TGD adolescent patients should consider incorporating in the letter:
It is also important for practitioners writing referral letters for TGD adolescent patients to work with their patients, their patients’ health plans, and/or the physicians who will be providing the medical or surgical treatments to determine what information needs to be included in the referral letters.
WPATH’s SOC: Guidance for Working with TGD Children
The SOC does not include recommendations for providers working with TGD children of the kind it offers to providers working with TGD adults and adolescents. However, WPATH offers detailed guidance and other recommendations for providers working with this patient population. Interested practitioners should review chapter 7 of the SOC.
Additional Legal and Ethical Considerations
Scope of Competence
As previously discussed, prior to writing letters supporting patients seeking gender-affirming medical or surgical treatments, practitioners must ensure that doing so is within their scopes of competence. In other words, these providers must have the education, training, and experience necessary to assess whether it is clinically appropriate to refer patients for gender-affirming medical or surgical treatments.31 Providing referral letters or other services beyond one’s scope of competence violates California law32 as well as CAMFT’s Code of Ethics.33
Practitioners can develop the requisite education, training, and experience to assess and refer TGD patients for gender-affirming medical or surgical treatments in various ways, including:
Providers looking to expand their scopes of competence can also review applicable chapters of the SOC, including chapter five (recommendations for providers working with TGD adults, chapter six (recommendations for providers working with TGD adolescents, chapter seven (recommendations for providers working with TGD children, and chapter 18 (recommendations for providers offering mental health care to TGD people).
Pre-Licensees and Referral Letters
CAMFT staff attorneys often receive calls from members who would like to know whether pre-licensed MFTs can provide referral letters supporting their patients’ efforts to obtain gender affirming medical or surgical treatments. The current version of the SOC does not provide specific criteria health care professionals must meet to write such referral letters. However, WPATH makes clear that providers writing referral letters for gender-affirming medical or surgical treatments must have “competencies in the assessment of transgender and gender diverse people wishing gender-related medical and surgical treatment.” Furthermore, the law requires supervisors to:
(1) Ensur[e] the extent, kind, and quality of counseling performed is consistent with the education, training, and experience of the supervisee.
(2) Monitor and evaluat[e] the supervisee’s assessment, diagnosis, and treatment decisions and provid[e] regular feedback.35
Consequently, supervisors must ensure that their supervisees are only performing therapy services and writing letters that are within the supervisees’ scopes of competence. Any letters that supervisees write for their patients, including gender-affirming medical or surgical treatment referral letters, should be reviewed and approved by their supervisors before the supervisees provide such letters to their patients or other relevant parties.
It is important for supervisors to carefully review their supervisees’ letters as the supervisors are legally responsible for “[e]nsuring the [supervisees’] compliance with laws and regulations governing the practice of marriage and family therapy…” 36 Accordingly, supervisors may be held liable if their supervisees’ letters exceed the supervisees’ scopes of competence, fail to meet relevant standards of care, etc.
It is encouraged that both supervisors and supervisees sign supervisees’ letters, though this is not specifically required. At a minimum, supervisees’ letters should be printed on their supervisors’ / employers’ letterhead and include the information required to be added to public communications (e.g. legal name, license / registration type, license / registration number, etc.).37
For more information about letter writing, see the CAMFT workshop “Law & Ethics: Letters, Testimony and Boundaries . . . Oh My! Guidelines to Help You Stay within Your Scope of Practice & Competence When Writing Letters and Offering Professional Opinions,” by CAMFT staff attorney Alain Montgomery, JD.
Prior to writing gender-affirming medical or surgical treatment referral letters, pre-licensees should also work with their patients, their patients’ health plans, and/or the physicians who will be providing the medical or surgical treatments to determine if the health plans and physicians accept referral letters written by pre-licensees.
Therapists should avoid the assumption that every transgender or gender-diverse patient seeking to receive treatment from them are struggling with gender dysphoria or seeking referral letters for gender affirming medical or surgical treatments. Like other patients, these individuals may be seeking help for clinical issues involving anxiety, depression, grief, stress, or other issues that are not related to their gender identities.
CAMFT Code of Ethics Rule 1.1 prohibits marriage and family therapists from discriminating against, or refusing professional services to anyone on the basis of gender, gender identity, and/or gender expression. Accordingly, therapists should be mindful that lacking the training and education necessary to treat gender dysphoria does not justify referring out all transgender or gender-diverse patients (including those for whom gender dysphoria is not a presenting concern). For example, a therapist who lacks the requisite training to treat a transgender patient for gender dysphoria may be able to effectively treat another transgender patient struggling with an eating disorder. To avoid engaging in discrimination, therapists should assess the needs of prospective patients, including TGD patients, on a case-by-case basis and avoid making assumptions about their presenting concerns.
CAMFT Code of Ethics Rule 3.1 provides:
Marriage and family therapists respect the rights of clients/patients to choose whether to enter into, to remain in, or to leave the therapeutic relationship. When significant decisions need to be made, marriage and family therapists provide adequate information to clients/patients in clear and understandable language so that clients/patients can make meaningful decisions about their therapy. (emphasis added)
Pursuant to this ethics rule, if a patient expresses a desire or intention to pursue a gender-affirming medical or surgical treatment, the therapist should strongly consider engaging the patient in a discussion about the therapist’s policies and procedures for writing referral letters. Such a discussion will help the patient to decide whether to continue treatment with the therapist or initiate treatment with a therapist who will be able to support the patient’s gender-affirming treatment process. Key issues to consider addressing with the patient include, but are not limited to:
Practice Pointer 3: Avoid Charging Exploitative Fees for Referral Letters
Therapists should set reasonable fees for referral letters to avoid allegations of patient exploitation. 38 The ethics code does not establish specific price ranges distinguishing reasonable fees from exploitative fees. However, when assessing this issue, a therapist should consider whether their intended fee for referral letters is designed to compensate the therapist for the actual time and labor involved in writing such letters, or yield a profit for writing the letters.
Clinicians who have acquired the appropriate education, training, and experience are generally permitted to support patients seeking gender-affirming medical or surgical treatment by writing referral letters. Therapists who are interested in expanding their scopes of competence to provide such support may do so via relevant continuing education, training, supervision, consultation, and similar means.
1The term “gender diverse” refers to “people with gender identities and/or expressions that are different from social and cultural expectations attributed to their sex assigned at birth. This may include, among many other culturally diverse identities, people who identify as nonbinary, gender expansive, gender nonconforming, and others who do not identify as cisgender.” (See Coleman, E., Radix, A. E., Bouman, W.P., Brown, G.R., de Vries, A. L. C., Deutsch, M. B., Ettner, R., Fraser, L., Goodman, M., Green, J., Hancock, A. B., Johnson, T. W., Karasic, D. H., Knudson, G. A., Leibowitz, S. F., Meyer-Bahlburg, H. F.L., Monstrey, S. J., Motmans, J., Nahata, L., ... Arcelus, J. (2022). Standards of Care for the Health of Transgender and Gender Diverse People, Version 8. International Journal of Transgender Health, 23(S1), S1-S260 (referenced hereafter as the “SOC”) at S252 https://doi.org/10.1080/26895269.2022.2100644 ).
2See CAMFT’s December 5, 2015 Statement on Therapy with Transgender and Gender Nonconforming (TGNC) Clients.
3See the Mayo Clinic’s online gender dysphoria resource under “Symptoms and Causes.”
4See GLAAD’s online article “The APA Removes "Gender Identity Disorder" From Updated Mental Health Guide.”
6See the Mayo Clinic’s online gender dysphoria resource under “Symptoms and Causes.”
7See the Mayo Clinic’s online gender dysphoria resource under “Diagnosis and Treatment” (stating “[t]reatment options [for gender dysphoria] might include changes in [the patient’s] gender expression and role, hormone therapy, surgery, and behavioral therapy.”
8See the UCSF Transgender Care Program’s “Transition Roadmap” page.
11See KC Clements’ Healthline article, “What to Expect from Gender Confirmation Surgery”; See also the UCSF Transgender Care Program’s "Gender-Affirming Surgery” page.
12See the UCSF Transgender Care Program’s "Gender-Affirming Surgery” page.
13See e.g. KC Clements’ Healthline article, “What to Expect from Gender Confirmation Surgery.”
14See e.g. the Programs and Services page for UCLA’s Gender Health Program (stating “[t]he UCLA Gender Health Program follows the WPATH Standards of Care Guidelines for our surgeries”); See also the UCSF Transgender Care Program’s “Surgery Referral Assessment Requirements” page (stating “UCSF Transgender Care adheres to the guidelines for surgical assessment as described in the World Professional Association for Transgender Health Standards of Care, 8th Version.”)
15See e.g. the UCSF Transgender Care Program’s “Surgery Referral Assessment Requirements” page (stating “UCSF Transgender Care adheres to the guidelines for surgical assessment as described in the World Professional Association for Transgender Health Standards of Care, 8th Version. Most insurance companies also adhere to these guidelines.” (emphasis added)); See also Blue Shield of California’s Gender Reassignment Surgery Policy at p. 3 (stating “[t]he World Professional Association for Transgender Health [WPATH], Standards of Care [SOC] for the Health of Transsexual, [sic] and Gender-Nonconforming People, Version 7 is used in the formation of some of the guidelines in this policy where applicable.”); See also Kaiser Permanente’s (Southern California) online “Transgender Services” resource under “Services and Education” (stating “Our gender-affirming surgery evaluation process follows a multidisciplinary approach aligned with the World Professional Association for Transgender Health (WPATH) Standards of Care.”); See also HealthNet’s “Clinical Policy: Gender Affirming Procedures” at p. 1 (stating “This policy is based on recommendations from the World Professional Association of Transgender Health…Standards of Care for Gender Identity Disorders, 7th version.”) 16Although some health facilities and plans have begun using the most current edition of WPATH’s Standards of Care (i.e. the eighth edition) for purposes of performing and covering gender-affirming medical and surgical treatments, others are still relying on the seventh edition.
17See WPATH’s “Mission and Vision” webpage.
18See WPATH’s SOC.
19See WPATH’s “Mission and Vision” webpage.
20See the SOC at p. S33.
21Id. at p. S32.
22These recommendations are outlined in Statement 5.3 of WPATH’s SOC (within chapter five of the SOC).
23Previous versions of the SOC recommended that patients receive more than one letter in support of an intended procedure. (See the SOC at p. S40).
26See World Professional Association for Transgender Health. (2012). Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People [7th Version] at pp. 27-8. https://www.wpath.org/publications/soc
27Health facilities and plans requiring referral letters for gender-affirming medical and surgical treatments generally have discretion to determine whether they will accept referral letters from providers who graduated from institutions that are not nationally accredited. Patients receiving treatment from providers without nationally accredited degrees should consider asking the health facilities and/or plans requiring the referral letters whether they will accept such letters from their providers. In appropriate circumstances, providers should consider reaching out to health facilities and/or plans requesting referral letters to make these inquiries on their patients’ behalf.
28See the SOC at p. S49.
29Id. at S57.
31See CAMFT Code of Ethics Rule 5.11.
32See Business and Professions Code § 4982(s).
33See CAMFT Code of Ethics Rule 5.11.
34See the SOC at p. S40.
35See Business and Professions Code § 4980.43.1(b)(1)-(2).
36See Business and Professions Code § 4980.43.1(b)(5).
37For more information, see the BBS’ Licensee and Registrant Advertising Requirements Fact Sheet.
38See CAMFT Code of Ethics Rule 4.7 (stating “Marriage and family therapists do not use their professional relationships with clients/patients to further their own interests and do not exert undue influence on patients.”)