The Trump Administration plans to quietly undo a Department of Health and Human Services (HHS) regulation banning health care providers and insurers from discriminating against trans patients.
To this day, no federal law explicitly prohibits health care discrimination against LGBTQ people (no federal law explicitly prohibits employment or housing discrimination against queer or transgender people either). But they need one, badly. A 2010 survey found that more than half of LGBTQ people reported experiencing discrimination from their health care providers, such as being demeaned or harassed, blamed for their health status, or being straight up denied medically necessary care. Transgender people are especially at risk: in 2015, one in four trans people reported that they faced discrimination from their insurers over the course of a single year, including being denied insurance coverage just because of their gender identity.
Transgender people should have clear, statutory protections from discrimination. But even without them, transgender patients have rights stemming from the Affordable Care Act’s nondiscrimination provision, Section 1557.
Section 1557 prohibits any federally-funded health care provider (including insurers, hospitals, and individual doctors) from discriminating against patients on the basis of race, national origin, disability, or sex. A growing consensus among federal courts recognizes discrimination against someone on the basis of their gender identity to be sex-stereotyping and thus sex discrimination. In other words, many courts recognize that laws banning sex discrimination also protect trans people.
The Obama Administration affirmed that principle by issuing regulations clarifying these protections. The regulations explicitly banned anti-trans discrimination in health care, as well as discrimination against people who have had an abortion in the past. Contrary to conservative fear-mongering, these rules don’t require any individual doctor to perform gender-reassignment surgery. What the HHS nondiscrimination rules did require is that doctors not deny their patient medically necessary care simply because of their gender identity. The rule also requires that insurers cover trans people’s healthcare equally. For example, it would prohibit insurers from denying transgender people coverage for a gender-affirming mastectomy when the same insurer would cover a mastectomy for a cisgender woman as part of a breast cancer treatment. Prior to these regulations, transgender people were routinely denied insurance coverage for medically necessary gender-affirming care: in 2015, fifty-five percent of transgender people who sought insurance coverage for gender-affirming surgeries were denied.
But before the regulations could go into place, eight conservative state attorneys general and a group of religious hospitals sued the Obama Administration to block them. On December 31, 2016, District Court Judge Reed O’Connor issued a nationwide injunction in Franciscan Alliance v. Burwell, enjoining the anti-discrimination regulations. These groups argued that the regulations violated religious health care providers’ rights under the Religious Freedom and Restoration Act (RFRA). The notoriously anti-LGBTQ district judge agreed they were likely to succeed and blocked implementation nationwide. After the 2016 election, the Trump Administration announced that it would reconsider the nondiscrimination regulations — which advocates believe is a sure sign the Administration intends to gut them.
HHS scrubbed information about Section 1557’s protections for transgender people off their website this summer. Now, the Hill reports that the Administration wants to roll back them back. Let’s be clear: health care discrimination is quite literally life-threatening. Just ask Jay Kallio, a trans man whose doctor withheld information about his “very aggressive” breast cancer, apparently because the doctor had “a real problem with [Jay’s] transgender status.” By rolling back these regulations, the Administration would actively enable discrimination that could cost transgender people their lives.
Republicans (and insurance companies) say that transition-related care is “unnecessary,” when nothing could be further from the truth. Both courts and medical experts recognize that treatment is a “serious medical need.” By making it easier for insurers to drop transgender people’s coverage, the right is sending the explicit message that trans people’s health care is unnecessary, burdensome, and disposable – and their implicit message is that their dignity and survival is too.
