Tennessee Passes Bill That Will Make a Public List of Trans People

House Bill 754 forces doctors to hand trans people’s individually identifiable medical information over to the state and then releases it to the public. It's the most dangerous anti-trans bill yet.

The Tennessee State Capitol in Nashville | Image: Wikimedia Commons

Today, the Tennessee Senate voted 24-7—with one Republican joining Democrats in opposition—to pass anti-trans House Bill 754. The bill now heads back to the Tennessee House for a quick concurrence vote after it originally passed that chamber three weeks ago. From there, it’ll head to Governor Bill Lee’s desk, where, given his track record, it’ll almost certainly be signed into law.

As Transitics reported in mid-March, HB 754 is disguised as a bill that aims to mandate insurance companies that cover gender-affirming care to also cover care for detransitioners. This idea, one which Republicans have already passed in Texas and Utah, has the effect of raising trans people’s insurance costs, and this is something the bill’s main sponsor, Jeremy Faison, explicitly acknowledged last month.

However, unlike the other detransition insurance bills, HB 754 will also create what Faison calls a “right to public transparency” surrounding gender-affirming care, which mandates that providers “report statistics regarding all gender transition procedures” to the Tennessee Department of Health. And the data being demanded is highly specific: aside from a person’s age, ‘biological sex,’ and procedure information, providers would also be forced to report a person’s state of residence, “the date on which” a patient received a “transition procedure,” and a complete “list of any diagnoses that” a trans person “has received of neurological, behavioral, or mental health conditions.” On top of this, doctors will also have to submit their own names and contact information. A last-minute amendment, proposed by the bill’s Senate sponsor Brent Taylor, removed the county reporting requirement that was present in the original bill.

HB 754’s original reporting requirements with apparent privacy violations highlighted.

Finally, the bill stipulates that all this information will be released to the public as part of a “comprehensive annual statistical report,” and it explicitly specifies that the “data in the report on the department's public website [must not be] aggregated.” In other words, it’ll provide members of the public with detailed data instead of just an overview.

And if this is starting to seem like a violation of trans people’s medical privacy, that’s because it is. Under HIPAA’s federal medical privacy standards, providers are prohibited from disclosing any “individually identifiable health information…that identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual.” According to RFK Jr.’s HHS, this includes “all geographic subdivisions smaller than a State…including county” as well as “all elements of dates (except year) for dates directly related to the individual…including admission date [and] discharge date.” Additionally, a person’s mental health diagnosis history is also considered identifiable.

HB 754 attempts to circumvent these concerns by stating that “forms required under this section must not contain individually identifiable health information” as defined under HIPAA, and despite that, it explicitly mandates that providers submit data that is clearly considered to be identifiable. And undercompliance is not an option. Under the bill, providers that don’t adequately abide by the reporting requirements will have their licenses suspended for at least 6 months while their employers will be hit with a fine of up to $150,000 and a potential investigation by the attorney general.

Thus, doctors will be forced to choose between risking their careers by following HIPAA and staying safe by handing over trans people’s medical information. But considering that HIPAA makes an exception for disclosures that are required under state law, the latter certainly seems to be the path of least resistance. And even worse, the bill allows the state to go after those that don’t see it this way.

It goes without saying that ‘individually identifiable health information’ is protected for a reason. Because of the data’s specificity—date of appointment, age, and mental health history—it’s highly likely that both members of the public and the state government will be able to use it to narrow down and, in some cases, fully identify many trans people—especially those that live in smaller counties. And this is particularly true given that the data is only being collected for a tiny subset of the state’s population.

Simply put, this bill is exceedingly dangerous: those who are re-identified could face violence and online harassment campaigns from right-wing trolls. It effectively leaves trans Tennesseans with 3 options: living in fear, pausing their medically necessary care, or fleeing the state in order to protect themselves. These choices are simply unacceptable, and they’re un-American in every sense of the word. No person—regardless of who they are—should be forced into this situation simply for being who they are.

And Tennessee Republicans clearly know the risks. They just don’t care.

Minutes before HB 754 passed the House, GOP representatives unanimously rejected a Democratic-led amendment that would’ve stripped out the provisions collecting and publishing trans people’s individually identifiable health information. Following that vote, while speaking before the full chamber, Faison outright lied about the bill’s contents while trying to justify the list-making provisions:

“I want to put your mind at ease: this bill does not break any HIPPA laws. We’re not sharing personal data about you. There is something that you need to know about you that you need to know about that I’ve learned through this called de-identified clinical data. De-identified clinical data is patient health information…that [has had] all direct identifiers removed so it can no longer be identified back to a specific individual.

“And here are the key elements that, per HIPAA…and according to this bill…we’re using the same de-identified clinical data methods: we remove all the names, addresses, phone numbers, emails, social security numbers, dates except for a year-specific, geographical data that’s anything smaller than a state, medical records…and any other unique code that could possibly identify a person.”

This is blatantly false. As previously mentioned, HB 754 unequivocally states that it will be collecting a trans person’s provider information, their age, and their entire mental health medical history, as well as “the date on which” they received gender-affirming care. And even if Faison is referring to the “comprehensive annual statistical report” in these remarks, this is still a lie. The bill does not mention that the information must be de-identified as part of the report. Quite the contrary: it only mentions that the report must be created from “all data obtained from forms required by this section” and, as discussed earlier, must be extremely detailed. The only data that won’t be published is doctors’ information, but it’s worth noting that this protection was only added by the Senate at the last minute.

The bill’s intent can be further demonstrated by a separate provision that will collect data on detransition care. There, insurance companies—not providers—will only be forced to submit the number of detransition claims they received in a month along with a person’s age, sex, and “if known, the date that the individual initially began a gender transition procedure.” Unlike for gender-affirming care, a person’s mental health history, appointment date, and provider details will not be reported.

These differences aren’t coincidental. There is simply no reason why the state would need to collect this data at all, let alone by subjecting trans people and detransitioners to different reporting requirements. In doing so, Republicans have made it abundantly clear: they’re fine putting trans people at risk—they only draw the line at endangering detransitioners.

If Tennessee Republicans’ goal is to run all trans people out of their state, they’re not hiding it well. Already, Tennessee is among the most restrictive in the country when it comes to trans people, but unlike Florida, Idaho, and Kansas, the state had thus far refrained from outright threatening the safety of its trans residents.

Now, the state is going much further than even these states have. Aside from making a list of its trans residents that is far more comprehensive than those made by Indiana, Kansas, and Texas, through House Bill 754, Tennessee will be painting a target on the back of every single trans person in the state.

This must be challenged. Simply put, if allowed to stand, Tennessee will become the first state where being trans truly is not an option. We can only hope that other states don’t decide to follow suit.