New Ruling Threatens the ACA’s Gender Discrimination Protection of Transgender People

Federal Judge O’ Connor temporarily ordered the Department of Health and Human Services (HHS) not to enforce a rule applying the ACA’s gender discrimination protections in cases involving transgender people. The judge ordered HHS to permit discrimination by religious entities against transgender patients. Patients seeking reproductive health care and those who have had an abortion can also be excluded from care.

“The court just ordered HHS to allow any hospital to turn a transgender patient away for any type of care – it could be a broken arm, a heart attack, anything,” says Shelli Quenga, Palmetto Project’s Director of Programs, “We’re disappointed by this ruling but, fortunately, one judge can’t change the fact that discrimination against transgender people is against the law.”

Most federal courts have sought to protect the ACA’s gender discrimination protection. HHS’s final regulations were implemented after years of lobbying from a broad coalition of patient advocates, 25,000 public comments, and a review of over a decade of case law. HHS’s rule ensures health care facilities are accessible for people with disabilities; that materials in other languages and interpretation are available; and that women are not charged more for health care. HHS’s rule also prohibits health care providers from charging transgender people more or refusing care simply because of a person’s transgender status.

Warren Redman-Gress, executive director of Alliance for Full Acceptance (AFFA), said, “Every major medical association agrees that transition-related medical care is medically necessary and even life-saving in many cases.” Several studies have shown that coverage does not increase overall health care costs. Medicare, Medicaid, and the Defense Department cover transition-related care on the basis of medical necessity, as do federal and many state employee health plans. Most health insurers have eliminated transgender exclusions in their Marketplace plans as of 2017.

Although the HHS rule exists, discrimination still happens. “South Carolina does not have an explicit policy ensuring equal coverage for transgender patients in private insurance or Medicaid,” stated Redman-Gress. In a recent national survey of nearly 28,000 transgender adults, one-third of those who saw a health care provider in the past year reported experiencing mistreatment based on their transgender status during that last year, including harassment, physical abuse, and being turned away by a provider. Nearly one-quarter of respondents (23%) reported avoiding health care when they were sick or injured in the last year because they feared discrimination.

“It is more important than ever for all consumers, especially those against whom discrimination has been all too commonplace, to speak up,” said Redman-Gress. “The ACA is still the law of the land,” he continued. AFFA has partnered with Palmetto Project to help consumers understand their rights to health care access and to the process for filing discrimination complaints. Consumers can contact Palmetto Project’s signupSC program at 888-998-4646 to discuss health coverage and access concerns. Certified insurance navigators are also available to assist consumers in enrolling in health plans under the Affordable Care Act. Open enrollment for 2017 coverage ends January 31.