Affordable Care Act, healthcare, LGBT, Obamacare, Transgender — May 16, 2016 at 12:23 pm

Obamacare’s stronger anti-discrimination protections couldn’t come at a better time

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New rule clarifies access to coverage and care for LGBT people, as anti-equality sentiment continues to run high.

Discrimination against transgender people is nothing new — and it’s a problem that’s sadly going to get worse before it gets better. (See: North Carolina’s HB2.)

Consider Jay Maddock of Kalamazoo, Mich., whose coverage for care he needs as a transgender man was actually taken away by his insurer, Blue Cross Blue Shield of Michigan.

That’s all going to change thanks to a final rule issued last week by the U.S. Department of Health and Human Services (HHS). When it comes to healthcare coverage and care, LGBT people can no longer be discriminated against. This is great news for the entire community, but especially for transgender people.

Under the rule regarding Section 1557 of the Affordable Care Act (ACA, or Obamacare), all people are protected from discrimination in healthcare on the basis of race, color, national origin, age, disability and sex. This includes discrimination based on pregnancy, gender identity and sex stereotyping. The term “sex stereotyping” refers to the discriminatory idea that everyone should be heterosexual or conform to a particular gender norm.

“The main thing we want people to know is that the rule protects all LGBT people from discrimination in healthcare,” says Kellan Baker, a senior fellow at the Center for American Progress (CAP) and a steering committee member for Out2Enroll, a national project to connect LGBT people with health insurance under the ACA. “The rule does not allow people to be treated badly because they’re LGBT. If they are treated badly, they have the ability to ask for protections, to ask for changes, to ask for the services and benefits we need.”

Section 1557 of the ACA, or Obamacare, has always protected LGBT people and others from discrimination. But that hasn’t stopped insurance companies and healthcare providers from treating LGBT people with disrespect or selling insurance plans that explicitly excluded transgender people from coverage for services, including those that would be covered for people who are cisgender, meaning they identify with the gender they were assigned at birth.

A memo issued by CAP explains the significance for the transgender community:

The rule is particularly important in addressing insurance discrimination against transgender people, who frequently encounter discriminatory insurance plan exclusions that deny them coverage for medically necessary care related to gender transition, even though the same services and procedures are routinely covered for non-transgender individuals. LGBT Communities and the Affordable Care Act, a study by the Center for American Progress, found that transgender respondents overwhelmingly characterized ‘insurance’ as synonymous with ‘exclusions.’

Previously, only 17 states and the District of Columbia prohibited insurance plans from discriminating against transgender individuals on the basis of gender identity by, for example, using transgender-specific exclusions. This rule extends these lifesaving protections nationwide. The rule also confirms that individuals must have access to facilities and programs consistent with their gender identity.

“The rule provides protections for trans people on the basis of gender identity, and for lesbian, gay and bisexual people on the basis of sex stereotypes,” says Baker. He adds that all insurance sold through the ACA marketplace starting with plans for 2017, and coverage through Medicare and Medicaid, must adhere to this rule. If they don’t, LGBT people will continue to have a means to file a complaint through the HHS Office for Civil Rights, which has been investigating complaints for years.

“The rule provides new clarity on what exactly the rule means,” Baker says. “It’s been in force since the passage of the ACA. But this is about saying, ‘We’re not going to argue with you any more about whether sex includes gender identity because it just does. End of story.”

This is particularly important, Baker adds, in light of situations like the one in North Carolina.

There are efforts underway at various levels to assert that LGBT people don’t have protections from discrimination, or don’t deserve them. This rule allows the federal government to say, ‘You’re wrong: LGBT people are protected from discrimination.’ And if people are having those experiences they can do something about it.

Maddock took action after his insurer withdrew coverage for his medically necessary care, including hormone replacement therapy, and was fortunate to be able to switch to a different insurance provider. Not every transgender person is so lucky.

Before the final Section 1557 rule was issued, Maddock told me that some transgender people were not only being denied coverage for transition-related care, such as hormones, but even for the counseling to work through their gender dysphoria, which is the medically recognized condition of a disconnection with the gender someone is assigned at birth. But transgender people have also had trouble accessing other services they need, such as trans men who have not had mastectomies and still need breast cancer screenings — a service cisgender women can’t be denied under the ACA. Trans people also face discrimination simply because of who they are.

“Trans people are human, too,” says Maddock. “We don’t just need doctors for our hormones. We get the flu, too. Our transition doesn’t make us bionic. But trans people are less likely to seek out healthcare. They’re not sure they can find a provider who is trans-friendly or knowledgeable. They’re also less likely to have insurance. So health insurance that covers trans people will reduce barriers to the coverage and care everyone needs.”

There’s one other very important aspect to the final rule on Section 1557: It does not include a religious exemption, Baker explains.

As we know, these types of exemptions get used as cloaks for bigotry. There are conscience protections in federal law and the ACA doesn’t change those. But the rule is very clear that there is no exception from the responsibility to ensure that everyone have access to the protection and healthcare they need.

Although this is a final rule, it can and will still be improved upon. Numerous discrimination cases are pending, and as those cases are decided additional HHS guidance will be issued to explicitly clarify that all forms of discrimination based on sexual orientation are inherently sex-based and unlawful, Baker says.

“We’d like the rule to be even more clear than it is,” he explains. “It’s important in future that HHS take whatever opportunities it can to state as plainly as possible that this rule provides protections for LGBT people. But there will still be people who don’t believe these protections exist, which is why HHS has been very clear in inviting complaints from members of the LGBT community.”

If you’ve experienced discrimination in obtaining health insurance or care for any reason, you can file a complaint with the HHS Office for Civil Rights HERE.

To find a healthcare provider who is knowledgable about LGBT healthcare, visit Out2Enroll.

[Image courtesy of Out2Enroll.]

  • Amy Lynn Smith does an excellent job of helping us understand the facts about Section 1557. Jay Maddock’s personal story is emblematic of what so many others who are insured often face in Michigan. Kellan Baker and Out2Enroll make such a huge difference in the lives of so many people. Just today, I fielded three calls from Trans people who were denied HRT. One, I referred to the ACLU, the other two I was able to resolve on the phone. Thank you!!

    • Amy Lynn Smith

      Thank you, Char!

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