In a major push for transgender rights, the Obama administration on Thursday announced that it will extend the current healthcare nondiscrimination law to transgender individuals and require health insurers and medical providers to treat all patients equally, regardless of sex or gender identity.
Under a proposed regulation issued by the Department of Health and Human Services, transgender people would be entitled to equal treatment in health care and would gain the legal right to make civil rights claims against insurers, doctors, hospitals and others who deny them coverage or necessary care because they are transgender. That includes forbidding health insurers from categorically excluding treatments related to gender transitions.
Transgender people often face significant barriers to getting medical care, as insurers often won’t cover treatments such as hormone therapy and mental health counseling, especially when this care is related to transitioning, and health care providers sometimes refuse care. According to a recent survey, more than 4 in 10 female-to-male transgender people reported discrimination in the health care system. Such discrimination has been linked to a range of negative health outcomes and disparities, including higher rates of HIV infection, smoking, drug and alcohol use, and suicide attempts.
“LGBT people have too often faced healthcare and coverage systems that provide inequitable and hostile treatment on the basis of their sexual orientation or gender identity,” David Stacy, Government Affairs Director at the Human Rights Campaign, said in a press release. “This proposed regulation will help address some of these disparities and is vitally important to help end discrimination against transgender and gender nonconforming people in healthcare and insurance.”
Obama’s push for equality
The health care regulation is the latest in a series of actions President Barack Obama has taken to advance transgender rights, including tangible steps like making it easier for people to get new passports that reflect their gender identity and symbolic gestures like mentioning transgender people during his State of the Union address.
The Affordable Care Act already prohibits health insurance companies and medical providers from discriminating against patients based on sex, and the new rules would explicitly extend those protections to transgender people.
Previously, the administration maintained that protections for transgender people were inherent in the Affordable Care Act’s anti-discrimination rules, but advocates urged the Department of Health and Human Services to issue a specific declaration. The regulation announced Thursday is only a proposal, and must be finalized after the department receives public comment.
“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 Burwell said in a press release.
The new rules don’t force insurers to cover any specific treatment — including gender confirmation surgery — but do require them to demonstrate their coverage policies aren’t designed to discriminate against people because of their gender identity. Under existing regulations, many insurers already pay for services such as hormone treatments and reconstructive surgery, but can decline to cover them when they’re part of a gender transition. The new rules would prohibit such discriminatory criteria.
They would also prohibit insurers and medical providers from refusing certain sex-specific surgeries — like hysterectomy or ovarian cancer treatment — to a transgender patient who identifies as a man, and provide patients a legal recourse if they believe they aren’t being treated equally.
“What the rule says is they cannot exclude transgender people from the services that other people have,” Harper Jean Tobin, policy director for the National Center for Transgender Equality, told the Associated Press.
‘A huge step’
The regulation 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, where transgender patients are often placed in rooms with members of opposite-sex.
Ten states and the District of Columbia had previously included such protections, but the proposed rule would extend the protections across the entire country.
“This is a huge step,” Michael Silverman, director of the Transgender Legal Defense and Education Fund, told the Associated Press. “It covers a lot of ground.”
These stronger protections for transgender people apply to all federal health programs operated by the Department of Health and Human Services, such as Medicare and Medicaid; all insurance companies that sell policies on the Obamacare exchanges or cover Medicare or Medicaid patients; and any hospital or doctor who receives payments for treating Medicare and Medicaid patients.
The rules would leave in place exemptions for religious organizations, and would preserve the “conscience clause” allowing medical providers to ignore the rules because of religious beliefs.