Story at a glance
- A new Florida rule that prohibits transgender people from using Medicaid to help pay for gender-affirming health care may violate Section 1557 of the Affordable Care Act (ACA).
- Under Section 1557, health programs that receive federal funds are prohibited from discriminating based on six protected characteristics, including sex.
- HHS is working to prevent similar rules and policies from cropping up elsewhere, the agencies said.
A new Florida rule that bars transgender people in the state from using Medicaid to help pay for gender-affirming medical care has raised concerns with the Department of Health and Human Services (HHS).
Florida’s Agency for Health Care Administration (AHCA) in August published a rule eliminating coverage under Medicaid for puberty blockers, hormones, gender-affirming surgeries and “any other procedures that alter primary or secondary sexual characteristics” when those procedures are used to treat gender dysphoria.
The move, which stripped an estimated 9,000 transgender Floridians of coverage for gender-affirming health care, took effect Aug. 21.
In an emailed statement to Changing America, the Centers for Medicare & Medicaid Services (CMS) and the HHS Office of Civil Rights (OCR) said they have concerns with the new rule. According to the agencies, restrictions imposed by federally funded entities that limit an individual’s ability to receive medically necessary care, including gender-affirming care, solely on the basis of their sex assigned at birth or gender identity likely violates Section 1557 of the Affordable Care Act (ACA), which prohibits health programs from discriminating based on six protected characteristics, including sex.
The agencies added that HHS plans to take action to protect state Medicaid beneficiaries’ access to gender-affirming health care but declined to provide additional information. The department is also working to prevent similar policies from cropping up elsewhere, the agencies said.
The AHCA did not respond to Changing America’s request for comment.
In July, HHS issued a proposed rule that would broaden the definition of sex discrimination in Section 1557 to include sexual orientation and gender identity, consistent with the Supreme Court’s ruling in Bostock v. Clayton County and earlier actions taken by the Biden administration to expand protections for LGBTQ+ Americans.
Public comment on the rule is open until Oct. 3.
According to Anne Alstott, a professor at Yale Law School, even if the Florida rule is found by the Health Department to violate Section 1557, the steps HHS can take to address it are fairly limited.
“That will not prevent Florida from doing what it’s doing, but it will set up a legal conflict with Florida and with other places that are trying to discriminate,” she said.
In June, Alstott and a team of seven scientists argued that Florida health officials’ position on gender-affirming health care is “thoroughly flawed and lacking scientific weight.” An AHCA report issued that same month claimed medical treatments for transgender youth including puberty blockers and hormones are “experimental and investigational” and inconsistent with “generally accepted professional medical standards.”
Major medical associations including the American Medical Association, the American Academy of Pediatrics and the American Psychological Association have voiced opposition to measures that restrict access to transgender health care.
The only acceptable recommended form of gender-affirming care for children who have not started puberty is social transition, according to guidelines set by the World Professional Association for Transgender Health (WPATH) and the Endocrine Society. Gender-affirming surgeries are not recommended for minors.
The AHCA report, along with guidance from the Florida Department of Health that suggested even social transition — nonmedical interventions including haircuts or changes to clothing, names or pronouns — be off-limits to minors, was used by state officials to support eliminating Medicaid coverage for gender-affirming care.
Meredithe McNamara, an assistant professor of pediatrics at Yale and one of Alstott’s co-authors in the June report, said the move highlights a need for a federal watchdog or institution to conduct scientific checks on state policies that rely on evidence disputed by mainstream science.
Yale researchers, including McNamara and Alstott, in May accused officials in Alabama and Texas of enacting policies to curtail transgender health care that are based on studies that intentionally “warp” scientific evidence to “exaggerate potential harms” of gender-affirming medical care.
“It’s never been so glaringly obvious that we needed something like this before,” McNamara told Changing America in an interview. “Discrimination and disinformation go hand in hand – anti-discrimination protections are helpful, but there needs to be some sort of consequence for using scientific misinformation to accomplish discrimination.”
On Wednesday, LGBTQ+ and health advocacy groups including Lambda Legal, the Southern Legal Counsel, the Florida Health Justice Project and the National Health Law Program filed a federal lawsuit challenging Florida’s Medicaid rule.
The complaint in part claims the rule violates Section 1557 of the ACA by discriminating on the basis of sex.
Editor’s note: This story was updated on Sep. 12, 2022 to clarify the position from CMS and OCR.