The United States Department of Health and Human Services (HHS) Thursday released proposed rules that clarify that transgender people are protected from a broad range of health care discrimination under Section 1557 of the Affordable Care Act, the first federal civil rights law that provides protections on the basis of sex in health care.
The proposed rules clarify that individuals cannot be denied health care or health care coverage based on their sex, including their gender identity, and states that categorical exclusions for transition-related care are “facially discriminatory.” They also state that individuals must be treated consistent with their gender identity in accessing facilities.
“This proposed rule is an important step to strengthen protections for people who have often been subject to discrimination in our health care system,” Health and Human Services Secretary Sylvia M. Burwell said. “This is another example of this Administration’s commitment to giving every American access to the health care they deserve.”
Dru Levasseur, Director of Lambda Legal’s Transgender Rights Project, said: “For years Lambda Legal has been involved in the transgender health care fight in our litigation, advocacy, and educational work knowing that people’s lives are at stake. The proposed rules could drastically change the landscape for a population that faces extreme health disparities, bias, and discrimination in health care settings and in coverage.”
Levasseur added, “Transgender people have been suffering far too long. After decades of struggle, the pathway to fair appropriate health care for all is finally opening up. Today’s announcement from HHS is a tremendous step.”
In September 2013, Lambda Legal submitted comments calling upon HHS to interpret the Affordable Care Act to protect LGBT people and people living with HIV from discrimination in health care.
National Center for Transgender Equality Executive Director Mara Keisling said, “The Department of Health and Human Service’s proposed rules have the potential to be life-saving for transgender people. The medical and scientific consensus for years has been that transition-related care is medically necessary and should be covered by insurance. Many systems have voluntarily covered these services because it is the right thing to do from a medical perspective, from a fairness perspective, and because it can save them money.”
Keisling added, “These rules will help finally make the promise of the Affordable Care Act real for transgender people – that they can find affordable health insurance that covers the essential care they need and doesn’t exclude care simply because of who they are. NCTE is thrilled that HHS has recognized these exclusions as the discrimination they are, plain and simple.”
The new rules, when final, will apply to health insurance plans sold on state or federal health care exchanges, Medicaid, CHIP (Children’s Health Insurance Program), Medicare, the Indian Health Service, and any health care provider that accepts federal funds (such as hospitals and doctors’ offices that accept Medicare or Medicaid). Some private health insurance plans outside the Marketplaces may not be covered if they are offered by issuers who do not also offer Marketplace plans or receive other federal funds.
The rule does not address non-HHS federal health programs such as veterans’ and military health care, but those agencies are responsible for applying Section 1557 to their programs. HHS said it is also considering whether to join other federal agencies in interpreting the ban on sex discrimination to include bias based on sexual orientation, and whether to allow health care providers to discriminate against women or LGBT people because of the provider’s religious belief. NCTE will advocate vigorously for protection for all LGBT people and against any religious right to discriminate against anyone.
“Hopefully soon, transgender people throughout the country will finally be able to access the health care that is so fundamental to their well-being,” said Keisling. “We are hopeful that, as the data suggests, this will help reduce rates of depression, suicidality, and substance abuse among transgender people, as well as alleviate stress-related health conditions that all people have when they aren’t getting the care they need and that their doctor orders.”
The proposed rule is open for public comment through November 6, 2015 and will be available at: federalregister.gov/public-inspection.
A fact sheet and Frequently Asked Questions is available at: hhs.gov/ocr/civilrights/understanding/section1557/index.html.