Practice Economics

HHS: Expand antidiscrimination protections to transgender patients



Transgender patients who receive health care via government programs or funding must receive equal access to treatments and insurance coverage, according to a proposed rule issued Sept. 3 by the Health and Human Services department. The rule would extend antidiscrimination policies under the Affordable Care Act to include gender identity.

The rule would apply to health providers who accept patients covered by Medicare and Medicaid as well as insurance purchased via the health insurance marketplaces.


“The proposed rule clarifies and harmonizes existing well-established federal civil rights laws and clarifies the standards that HHS and in particular, the Office of Civil Rights, will apply in implementing [ACA] Section 1557,” Jocelyn Samuels, OCR director, said in a press conference. “Prior laws enforced by the Office of Civil Rights barred discrimination based only on race, color, national origin, age, or disability. All of the protections against sex discrimination that will be incorporated into the rule are new in this space.”

Section 1557 of the ACA extends civil rights protections to ban sex discrimination in federal health care programs and activities. The new proposed rule establishes that the prohibition on sex discrimination includes discrimination based on gender identity. The rule also includes requirements for effective communication for patients with disabilities and enhanced language assistance for patients with limited English proficiency.

Specifics of the proposed rule include:

• Patients must be treated equally and consistent with their gender identity by health providers. Insurers must provide fair access to coverage regardless of gender identity. For example, some insurers have historically excluded coverage of all care related to gender transition. Such categorical exclusions are prohibited under the proposed rule.

• Women must be treated equally with men in the health care they receive, not only in the health coverage they obtain but in the services they seek from providers.

• For patients with disabilities, the rule contains requirements for the provision of auxiliary aids and services, including alternative formats and sign language interpreters and the accessibility of programs offered through electronic and information technology.

• The rule bolsters language assistance for people with limited English proficiency so that patients are able to more effectively communicate with their providers to describe their symptoms and understand treatment.

During the press conference, Ms. Samuels clarified that the rule does not mean that health insurers must cover any specific treatments or procedures, rather they must apply nondiscriminatory criteria when assessing coverage requests.

The proposed extension of protections is, in part, driven by ongoing cases of sex and identity discrimination by some health providers. In one case, a hospital denied a transgender patient a room assignment consistent with her gender identity. In another, a male domestic violence victim was denied services at a hospital because he did not fit the traditional profile of a domestic violence victim, Ms. Samuels said. In another case, a health provider required that a husband be the guarantor for his wife’s medical bills but did not require the same for male patients and their spouses.

“There continue to be serious problems of discrimination in the health care arena,” she said. “This proposed rule provides very valuable tools for us to be able to appropriately address them.”

HHS is requesting comments on whether Section 1557 should include exemptions for religious organizations and, if so, to what extent. The administration notes that nothing in the proposed rule would affect the application of existing protections for religious beliefs and practices, such as provider conscience laws and regulations under the ACA involving preventive health services.

Comments on the rule will be accepted at until Nov. 6.

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