HHS Issues Regulations Banning Trans Health Care Discrimination

Today we welcome historic final regulations that pave the way for nationwide coverage of transition-related care and prohibits other forms of anti-LGBT discrimination in health care. It is now clearly illegal across the US for health providers and insurance companies to discriminate against transgender people.

The 2010 Affordable Care Act (ACA) prohibited discrimination in federally funded health programs based on race, national origin, age, disability, and sex. The U.S. Department of Health and Human Services (HHS) just released final regulations making it clear that trans people are protected by this law – including when it comes to health insurance coverage for trans people! The regulations make illegal the practice of categorically excluding all gender transition-related health care from coverage, common in private health insurance plans, as well as in state Medicaid, Indian Health Service, and CHIP (Children’s Health Insurance Program) programs. Instead, plans will have to cover services for transgender people if they offer those services to non-transgender people or if denying the service is based on a discriminatory reason  instead of a valid reason, such as a scientifically supported reason.

The regulation will apply to the vast majority of health insurance plans, including all plans sold on the state and federal exchanges, as well as any plan sold by a company with a federal contract or that is receiving federal funds. Some private plans that do not receive any type of federal funds may not be covered. The regulation does not address non-HHS federal health programs such as veterans’ and military health care, but those agencies are responsible for applying Section 1557 to their programs, and HHS is urging other agencies to take steps to enforce it.

Today’s announcement is one of the biggest wins ever for transgender people at the national level. NCTE worked to secure sex discrimination protections in the ACA and avoid any discriminatory provisions and has pressed to eliminate exclusions ever since.

The final regulations contain other critical protections NCTE had advocated for, including:

• Transgender people have the right to be treated in a way that matches their identity when it comes to gender-specific facilities, such as bathrooms, or hospital room assignment based on gender. This overrides any contrary state law that applies to health care facilities, including North Carolina’s HB 2.
• Transgender people, regardless of the sex listed on their health record, have a right to gender-specific care such as breast or prostate exams.
• Other important civil rights protections, including for pregnant individuals, people with disabilities, and non-English speakers.

Because the regulation’s prohibition of transition-related exclusions has some language that insurance companies could claim is unclear, we anticipate that  insurance companies may not immediately comply with all of the regulation’s requirements. Instead, NCTE anticipates that, at least in some cases, they may attempt to exclude some medically necessary treatments. Thus, the fight is not over. ,  NCTE anticipates that some insurance companies will still try to exclude certain medically necessary treatments. Thus, the fight is not over.

While the ACA protects all LGBT people from health care discrimination, the new regulation isn’t as clear about discrimination based on sexual orientation as it is about gender identity discrimination. In practice, the regulation covers most—potentially all—forms of discrimination based on sexual orientation, but it stops short of saying so in plain terms. We strongly urge HHS to make clear through additional guidance and enforcement actions what a growing number of courts have already recognized and the EEOC: that all forms of discrimination based on sexual orientation are inherently sex-based and unlawful.

The regulations are in line with the overwhelming medical consensus that transition-related care should be covered. The American Medical, Psychiatric, and Psychological Associations, the American College of Physicians, and the American Academy of Family Physicians all oppose trans exclusions. Studies indicate that covering transition-related care is of insignificant cost and has the potential to be cost-saving, as people who are provided this care are more likely to have increased overall mental health, greater HIV medication adherence, and less anxiety, depression, suicidality, and substance abuse.

While the final regulations technically go into effect on July 18, you can file a complaint with the federal government now if you have been mistreated when seeking care because of being LGBT, or have been denied transition-related care by your health plan. Insurance plans may be given until 2017, depending on when their plan year starts, to make updates to plan documents that explain which health services are included and excluded. To learn how to file a complaint, and hear about other options, visit NCTE’s Know Your Rights resource on Health Care.

Read NCTE's FAQ about the regulations here.