New Health Care Regulations Affirm Non-Discrimination Protections | National Center for Transgender Equality

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David Farmer
July 26, 2022

New Health Care Regulations Affirm Non-Discrimination Protections

WASHINGTON, DC – Yesterday, the Biden-Harris Administration released new regulations that will restore and expand nondiscrimination protections that are part of the Affordable Care Act.

The Health Care Rights Law, also known as Section 1557, is the part of the Affordable Care Act (ACA) that prohibits sex discrimination, including discrimination against transgender and nonbinary people, by most health providers and insurance companies. It also prohibits discrimination based on race, national origin, age, disability, sexual orientation and intersex status. 

“The new regulations regarding the Health Care Rights Law make clear that most health care providers and insurance companies cannot deny appropriate and necessary care to transgender people,” said C.P. Hoffman, senior policy counsel for the National Center for Transgender Equality. “Discrimination against trans people in health care is illegal and this proposed rule demonstrates that the Biden-Harris Administration intends to enforce the law.”

Under the ACA, it is illegal for most insurance companies to have transition-related care exclusions. It is also illegal for most health providers to discriminate against transgender people, for example by turning someone away or refusing to treat them according to their gender identity.

Proposed regulations like this one don’t create new protections that weren’t already there or change the law, but they clarify the law’s intent, educate people about their rights, and help insurance companies, health care providers and government agencies understand how to follow the law.

The Health Care Rights Law is the part of the Affordable Care Act (ACA) that: 

  • Requires providers and insurers receiving federal funds not to deny or restrict access to health care based on sex, including gender identity and sexual orientation;
  • Prohibits health providers and insurance companies receiving federal funds from discriminating on the basis of sex, including anti-transgender discrimination; and
  • Further prohibits discrimination based on race, national origin, age and disability.

The Biden-Harris action seeks to reverse efforts by the Trump administration to undermine legal protections for transgender people.

On June 12, 2020, the Trump Administration released a final rule reinterpreting the Affordable Care Act’s non-discrimination provisions. Trump’s rule interpreted the law as not protecting patients from discrimination because they are transgender, pregnant, or have a same-sex partner or family member. It also instructed hospitals and insurance companies that they were no longer required to provide patients with notices of their rights or even how to get information in different languages. 

NCTE, along with partner organizations, initiated a campaign that led to the submission of more than 130,000 public comments condemning the proposal to the U.S. Department of Health & Human Services. This slowed down the rulemaking process andon Aug. 17, 2020, one day before this rule change was to go into effect, a federal judge blocked Trump’s rule based on the Bostock v. Clayton County Supreme Court decision.

On May 5, 2021, the Biden-Harris Administration and HHS announced that the Office for Civil Rights will interpret and enforce Section 1557 and Title IX’s nondiscrimination provisions to include sexual orientation and gender identity. The update was made in light of the U.S. Supreme Court’s decision in Bostock v. Clayton County and subsequent court decisions. And on Jan. 4, 2022, HHS announced its intention both to restore Obama-era protections, and take them a step further by recognizing gender-affirming care.

This action is critical. According to NCTE’s 2015 U.S. Trans Survey:

  • One in four (25%) transgender people experienced a problem with their insurance related to being transgender, such as being denied coverage for care related to gender transition or being denied coverage for routine care because they were transgender.
  • More than half (55%) of those who sought coverage for transition-related surgery were denied, and 25% of those who sought coverage for hormones were denied.
  • One-third (33%) of those who saw a healthcare provider reported having at least one negative experience related to being transgender, with higher rates for transgender people of color and transgender people with disabilities. This included being refused treatment, verbally harassed, or physically or sexually assaulted, or having to teach the provider about transgender people to get appropriate care.
  • 23% of transgender people did not see a doctor when they needed to because of fear of being mistreated as a transgender person, and 33% did not see a doctor when needed because they could not afford it.

When the public comment period on the new regulations opens, it’s crucial that the voices of those who oppose discrimination in health care be heard. The National Center for Transgender Equality, in partnership with Transgender Law Center and Transgender Legal Defense and Education Fund, will launch the #ProtectTransHealth campaign to educate the public about how the new rule will impact trans people and encourage supporters of transgender rights to submit public comment.

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