On Thursday, the Department of Health and Human Services issued new proposed regulations on the implementation of the Affordable Care Act that would protect transgender people from discrimination in health care.
The new rule refers to Obamacare Section 1557, which established nondiscrimination protections in health care on the basis of “sex” for the first time. According to Thursday’s announcement, “sex” will be defined to include gender identity, guaranteeing transgender people have the same access to health care as others. “This proposed approach is consistent,” the rule reads, “with the principle that discrimination on the basis of sex includes discrimination on the basis of gender identity and that failure to treat individuals in accordance with their gender identity may constitute prohibited discrimination.”
Though “sexual orientation” is not explicitly included in the regulation, “sex stereotyping” is, which would extend protections to people who are gay, lesbian, and bisexual who might be discriminated against based on stereotypical notions of femininity or masculinity.
Among other things, this rule would prohibit insurance plans from categorically excluding coverage for transgender individuals just because of their gender identity. It would also protect transgender individuals’ access to medically necessary health care services and ensure their gender is appropriately respected, particularly when placed in sex-segregated facilities like hospital wards.
The guidance recognizes that the protections “may be new.” An example provided points out how some service providers may need to revise their policies to accommodate transgender patients: “A provider specializing in gynecological services that previously declined to provide a medically necessary hysterectomy for a transgender man would have to revise its policy to perform the procedure on transgender individuals in the same manner it provides the procedure for other individuals.”
Kellan Baker, Senior Fellow at the Center for American Progress, told ThinkProgress that the protections are “groundbreaking” and “an important addition to the canon of civil rights law.” Noting how these protections will help all LGBT people, he highlighted “the historic step of banning insurance plan exclusions that target transgender people for denials of coverage.”
Ten states and the District of Columbia had previously included such protections, but the proposed rule would extend the protections across the entire country. These protections have already helped people like Regina Gray, a Colorado transgender resident who almost had to sell her house because she had to pay out-of-pocket for most of her medication. Once the state marketplace opened, she was able to secure an affordable comprehensive plan that saved her over $700 a month.
The 2011 National Transgender Discrimination Survey found that transgender people have experienced rampant discrimination because of their identities:
- 19 percent reported being refused medical care.
- 50 percent had to teach their medical providers about transgender care.
- 48 percent postponed accessing care when sick or injured because they could not afford it.
- 28 percent postponed accessing care when sick or injured due to discrimination.
Such discrimination contributed to higher rates of negative health outcomes, including HIV infection, smoking, drug and alcohol use, and suicide attempts.
The passage of Obamacare has already increased the number of LGBT adults with access to health insurance, but many are still not covered.