On Friday afternoon, the Department of Health and Human Services (HHS) issued a new rule regarding the implementation of nondiscrimination protections under the Affordable Care Act (ACA). It guarantees that transgender people cannot be denied health care by professionals that receive federal funding, and also that it is discriminatory to refuse them access to transition-related services.
The ACA’s Section 1557 banned discrimination in health care on the basis of “sex” for the first time in U.S. law. Like other departments in the Obama administration have done, HHS interpreted this to include all aspects of gender identity, guaranteeing transgender people have access to the services they require:
A covered entity shall provide individuals equal access to its health programs or activities without discrimination on the basis of sex; and a covered entity shall treat individuals consistent with their gender identity, except that a covered entity may not deny or limit health services that are ordinarily or exclusively available to individuals of one sex, to a transgender individual based on the fact that the individual’s sex assigned at birth, gender identity, or gender otherwise recorded is different from the one to which such health services are ordinarily or exclusively available.
This, for example, would ensure that a transgender man could continue to access and have insurance cover mammograms and gynecological services he still requires despite transitioning.
The rule also specifically states that insurance companies cannot deny coverage to therapies, surgeries, or other procedures related to gender transition:
A covered entity shall not, in providing or administering health-related insurance or other health-related coverage… Have or implement a categorical coverage exclusion or limitation for all health services related to gender transition; or otherwise deny or limit coverage, deny or limit coverage of a claim, or impose additional cost sharing or other limitations or restrictions on coverage, for specific health services related to gender transition if such denial, limitation, or restriction results in discrimination against a transgender individual.
Notably, the rule does not include a blanket religious exemption for faith-based providers who would prefer not to provide such services because of their religious beliefs. This could possibly trigger new lawsuits challenging the ACA not unlike the Hobby Lobby case.
The 2011 National Transgender Discrimination Survey found that 19 percent of transgender people had been refused medical care because of their gender identity, 50 percent reported having to educate their medical providers about transgender care, 28 percent postponed medical care due to discrimination, and 48 percent postponed medical care because they could not afford it.
The National Center for Transgender Equality’s Mara Keisling celebrated the regulations, calling it “a historic day for transgender people and their families, who have suffered without the health care they need for too long.”
The HHS rule follows similar rule-making in several states, which incorporated the same transgender protections into the state exchanges they created to administer the ACA. Now transgender patients in all 50 states will be guaranteed access to health services and insurance to cover those services.