New HHS Rule Could Change the Game for Trans Healthcare

Today, after pressure from LGBT advocacy groups, the U.S. Department of Health and Human Services proposed a new policy that will enable transgender Americans to file claims of civil rights violations against physicians, insurers, and hospitals that fail to provide trans-affirmative healthcare care.

The policy clarifies the scope of the Affordable Care Act’s nondiscrimination clause, Section 1557. The proposed policy forbids insurers from denying transgender patients transition-related health care like hormone therapy, counseling, and surgical procedures that that have previously been considered aesthetic.

While the proposed ruling would exempt religious healthcare organizations by preserving the ACA's "conscience clause," the ruling's new mandates are sweeping. The ruling will apply to all physicians, hospitals, and clinics that receive funding through Medicare and Medicaid, and all insurance companies that market services through the ACA's digital exchange.

The proposed ruling marks an unprecedented push by the Obama administration to close loopholes in transgender civil rights by expanding access to trans-inclusive healthcare. "This will help ensure that trans people are free from many all-too-common forms of discrimination from health providers, including health insurance plans’ exclusion of coverage of sex reassignment procedures and outright refusals of care by doctors, medical clinics, hospitals and others based on simple, old-fashioned bias,” stated Whitman-Walker Health in a press release.

“Today, HHS has taken a major step to ensure that all transgender individuals will have access to life-saving, affirming care that is consistent with the prevailing standard of care. We applaud the agency for taking such a strong position and developing regulations that are consistent with the goal of Section 1557, which is to eradicate discrimination in healthcare," the National Center for Lesbian Rights said in a statement. But NCLR added that, "in order to realize the full promise of Section 1557, we call also upon the HHS to prohibit discrimination on the basis of sexual orientation in its final regulations."

Transgender health disparities are stark: 28 percent of transgender individuals report harrassment when accessing health services; 19 percent report being refused care based on gender identity; and a staggering 50 percent report having to teach their providers how to provide them with adequate care, according to a major report from the National LGBTQ Task Force.

Rather than mandating that insurers provide certain treatments, like gender-confirming surgeries, the proposed policy requires insurers to make sure that their policies are not designed to discriminate based on gender identity, and provides transgender patients with legal options to seek legal recourse if they are denied trans-inclusive health services. Consequently, insurers would no longer be allowed to deny trans women services like prostate cancer screenings, or trans men treatments for ovarian cancer.

While today's HHS ruling is only a proposal, which requires public comment before final implementation, it provides hope for transgender patients who struggle to access affirming care.