ACA rule should improve access to healthcare for transgender people
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Congressional gridlock may be preventing the passage of some of the technical fixes needed to ensure the Affordable Care Act’s lasting health, but other improvements to the law can be made through the regulatory process.

One such change, approved in May, should dramatically increase access to health care for transgender people, a population that has long been marginalized in healthcare settings.

Numerous studies have shown that discrimination against transgender people in healthcare is widespread. Many transgender people report experiencing discrimination based on their gender identity. This includes, being subjected to harsh or abusive language from a healthcare professional; experiencing physically rough or abusive treatment; being blamed for their own health conditions; and being denied health care services.

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Not surprisingly, those who experience this kind of treatment, or even merely fear that it will happen, are more reluctant to seek out necessary routine and emergency health care services.

That should begin to change as a new rule to Section 1557, the Affordable Care Act’s primary nondiscrimination provision, takes effect. Issued by the U.S. Department of Health and Human Services Office of Civil Rights (OCR) last spring, the rule explicitly prohibits discrimination on the basis of gender identity (in addition to race, color, national origin, sex, age, and disability) in any health care facility, program, or activity receiving federal funding. OCR began its implementation this past July.

Perhaps one of the most significant improvements under the new rule will be to explicitly prohibit health insurers from denying coverage of medically necessary care related to gender transition, such as hormone treatment or surgery. Prior to the new rule, just 17 states and the District of Columbia had issued guidance prohibiting insurance plans from discriminating against transgender people. Now, these protections against insurance discrimination will be extended nationwide. This is essential for increasing access to life-saving medical treatments, which many transgender people currently either pay for out of pocket, or forego for lack of ability to pay.

The Section 1557 rule could also offer protections for gay, lesbian, and bisexual people who experience discrimination in health care. The rule’s coverage of sexual orientation is less explicit than its coverage of gender identity, but it does state that discrimination on the basis of sexual orientation is prohibited when the discrimination is based on sex stereotyping.

Recent federal court and Equal Employment Opportunity Commission rulings support a growing understanding that discrimination on the basis of sex or sex stereotyping encompasses some discrimination on the basis of sexual orientation. For example, the belief that women should only date or marry men and vice versa can be understood as a form of sex stereotyping. Therefore, denying fertility services to a lesbian couple could constitute a form of sex stereotyping prohibited under federal law.

The federal guidance to healthcare providers and insurers to provide nondiscriminatory care to transgender patients comes amid a growing movement to enact laws at the state and local level that would place barriers to care for transgender people. In 2016 alone, nearly 200 restrictive bills targeting the LGBT community in terms of access to healthcare and access to public spaces such as bathrooms have been filed in 32 states, and have passed and been signed into law in Indiana, Arkansas, Mississippi, Tennessee, and North Carolina. Crucially, the new Section 1557 rule supersedes these discriminatory state laws.

To make nondiscrimination in health care a reality, health care providers, facilities, and insurers will need to assess whether or not they are in compliance. Do they have official nondiscrimination policies in place that include gender identity? Are they providing professional training for clinical, administrative, and support staff in how to treat individuals in a manner consistent with their gender identity? Are they denying medically necessary care to a transgender person (such as a hysterectomy) that is provided to people who are not transgender? 

Until the new Section 1557 rule is fully implemented, transgender and lesbian, gay, or bisexual individuals who experience discrimination in health care should file a complaint with the OCR or seek guidance from LGBT legal organizations such as Lambda Legal or the ACLU LGBT Rights Project. 

Tim Wang is LGBT Health Policy Analyst at The Fenway Institute and Sean Cahill is Director of Health Policy Research at The Fenway Institute. They are also co-authors of the policy brief What the new Affordable Care Act nondiscrimination rule means for providers and LGBT patients.


 

 

The views expressed by contributors are their own and not the views of The Hill.