It’s getting much harder to get gender-affirming care in the United States. To date, nearly half of states have banned gender-affirming care for people under 18 (though several of these bans are temporarily blocked). Despite lawmakers’ claims they want to “protect” children, some of these laws also affect care for adults, and an increasing number of new bills target adults directly.

All this hostility, combined with targeted threats and harassment, has led clinics to shut down. Some gender-affirming care providers have even left the field entirely.

But even before far-right politicians and hate groups made banning medical care for trans people a priority, there were barriers to gender-affirming care. And in Hawaii, lawmakers are considering a bill that would knock down one obstacle in particular: state-level restrictions that make it more difficult to prescribe testosterone. A state house committee will hold a hearing on the bill today.

A ‘disproportionate barrier’

Testosterone is a controlled substance, meaning it’s regulated under a federal law called the Controlled Substances Act. And under the 2008 Ryan Haight Act—named for an 18-year-old who died from an overdose of prescription drugs purchased online—providers are required to see a patient in person before prescribing any controlled substance via telehealth.

None of the other drugs typically used for gender-affirming care are regulated this way. These include puberty blockers, other hormones such as estrogen, and anti-androgens, meaning drugs that block the action of testosterone.

According to Dr. Crystal Beal, a family medicine physician, founder of the telemedicine practice QueerDoc, and a fellow with Physicians for Reproductive Health, there’s no medical reason why testosterone should be regulated differently from these other drugs. The rules create a “disproportionate barrier for people who want treatment with testosterone,” they said.

But during the pandemic, this barrier was partly dismantled: Under the COVID-19 Public Health Emergency, the Drug Enforcement Administration (DEA) waived the in-person requirement for controlled substance prescriptions—one of many temporary changes the federal government made to help people access medical care via telehealth.

This change didn’t just help maintain access to gender-affirming care during the pandemic; it allowed telemedicine to become a lifeline for trans people as states began to outlaw gender-affirming care. For example, Beal previously told Rewire News Group that their practice received a significant influx of new patients from Florida after that state’s gender-affirming care ban went into effect.

The change also helped patients access buprenorphine, another Schedule III substance used in the treatment of opioid use disorder, and some drugs prescribed for mental health conditions.

But then, last year, as the official Public Health Emergency came to an end, the DEA proposed a new rule that would have extended some of these pandemic telemedicine flexibilities while eliminating others.

Specifically, prescribing Schedule III controlled substances like testosterone via telemedicine would only have been permitted if a provider had already established an in-person relationship with a patient. Otherwise, a 30-day supply could be prescribed, but the patient would have to have an in-person visit to have their prescription extended.

The proposal led to a public outcry: The DEA received almost 40,000 comments, most of them opposed to the reinstatement of in-person requirements. In response, the DEA once again extended the full set of telemedicine controlled substance flexibilities through the end of this year.

This meant providers could continue prescribing testosterone to patients remotely—under federal law, that is. But in some places, state laws are still getting in the way.

What Hawaii lawmakers are proposing

On top of federal law, there’s a complicated web of state-level restrictions on controlled substances. These rules vary by state and are often difficult to decipher, creating confusion for patients and providers alike.

“Most clinicians are not also trained as lawyers,” Beal said. “We’re not used to reading legalese.”

For example, when QueerDoc started seeing patients in Hawaii, Beal found that the state essentially had its own version of the Ryan Haight Act, requiring providers to establish an in-person relationship with a patient before prescribing them controlled substances. Hawaii law also specifically mandates the provider be physically present in the state when they write the prescription.

“I’ve never seen a piece of legislation like that in any of the other states that we operate in,” Beal said. “And we operate in nine other states.”

So, Beal worked with Hawaii lawmakers to introduce a bill that would change this, relaxing the in-person requirements for drugs prescribed as part of gender-affirming care. HB 2079 would also extend the protections of Hawaii’s “shield” law—which guards abortion patients, providers, and anyone who helps someone get an abortion from out-of-state legal action—to gender-affirming care providers and parents or guardians of minors receiving gender-affirming care.

Hawaii has positioned itself as a state dedicated to protecting abortion and gender-affirming care. For instance, its 2023 shield law also expanded abortion access by allowing advanced practice clinicians, such as physician assistants and nurse practitioners, to provide care and removing unnecessary facility requirements. And the state enacted a new slate of protections for LGBTQ+ residents in 2022.

But practical barriers to care remain. On Tuesday, the Center for Reproductive Rights filed a lawsuit against Hawaii to block its midwifery licensure requirements, which the Center says disproportionately affect the native Hawaiian community. Beal was inspired to advocate for the telemedicine reforms because “we had patients asking for care and we couldn’t provide care for them,” they said.

The Lavender Clinic, which had been one of Hawaii’s largest providers of gender-affirming care, closed permanently at the end of August due to a funding shortfall. Patients were left scrambling, and as they have in other states, QueerDoc stepped in to try and help fill the gap. But while the practice has telemedicine providers who are licensed in Hawaii, none of them live there. So they’ve hosted pop-up clinics every three months with a local partner, where a QueerDoc provider travels to Hawaii to see patients and issue prescriptions in person.

But Hawaii is a state made up of islands—137, to be exact, seven of which are inhabited—and it’s a heavy lift for many patients to travel from one island to another just for a doctor’s appointment. And while Hawaii’s long-standing physician shortage seems to be improving somewhat, the state still needs at least 750 more physicians to meet its population’s needs—another problem that could be eased by expanding telemedicine options.

Other obstacles remain

Even if Hawaii and other states relax their controlled substance rules, other barriers will persist. For one thing, Beal pointed out that some pharmacies—most notably Walmart—have their own internal policies that restrict telemedicine prescriptions for controlled substances. Some patients have also reported issues with certain Costco, Walgreens, and CVS locations.

And then there’s the looming potential restoration of the federal in-person prescribing requirement.

Last year, when the DEA was considering a rule change, Massachusetts Democratic Sens. Elizabeth Warren and Ed Markey called on the agency to either reschedule testosterone—meaning move it to a less restrictive controlled substance category—or deschedule it entirely, removing all extra restrictions.

Interestingly, this would be in line with the DEA’s original view on testosterone, which Congress added to the controlled substances list in 1990 due to concerns about professional athletes using it along with other performance-enhancing anabolic steroids. At the time, the change was opposed by the DEA, as well as the Food and Drug Administration and the American Medical Association (AMA), because the Controlled Substances Act was meant to regulate drugs that can cause dependence, and there’s no evidence that testosterone and anabolic steroids carry this risk.

Similarly, Beal—who also has a background in addiction medicine—points out that the Ryan Haight Act was intended to protect patients from over-prescription of opioids, especially by providers who aren’t following best practices. This is a noble goal, they said, “but in my experience in addiction medicine, it wasn’t the regulations that kept my patients safe from bad clinicians. Unfortunately, nothing kept them safe from bad clinicians. Bad people do bad things.”

“All the literature we have around telemedicine and substance use disorder is that outcomes in telemedicine treatment of substance use disorder are the same or better than in-person care,” they continued. Numerous studies also show that gender-affirming care has tremendous health benefits for the people receiving it, and while data on telemedicine is more limited, it is positive.

Finally, Beal noted that controlled substance rules haven’t had a meaningful effect on the people whose use of testosterone they were meant to limit.

“Most people who are interested in using testosterone for sports performance enhancement, or body building enhancement are people who have expendable income,” Beal said. “Making testosterone a controlled substance hasn’t changed their access.”

The rules have, however, limited access for “gender-diverse people seeking gender-affirming care,” said Beal, as well as for people with substance use disorders and those with mental health conditions—all groups that already face disproportionate challenges in accessing health care.

The DEA has the authority to deschedule and reschedule drugs without congressional action, so it could remove testosterone from the list at any time.

The agency could also choose to make telemedicine flexibilities permanent, a move supported by the AMA, which cites research demonstrating that, in addition to improving access to gender-affirming care, telehealth prescribing improved access to treatment for patients with opioid use disorder, significantly reducing their chances of overdose. If the DEA made these changes, more states would likely follow suit and update their laws, as well.

In Hawaii, HB 2079 will be heard in committee today at 2 p.m. local time. Members of the public can watch and testify remotely.

“Nothing highlights the life-and-death nature of these bills like the death of Nex Benedict,” Beal said.