TransAmerica: Transgender equality in US healthcare

transgenderEnding discrimination against transgender patients. This is one of the goals of the Nondiscrimination in Health Programs and Activities rule proposed by the U.S. Federal Government on September 3rd, 2015. The proposal, stemming from the Section 1557 Affordable Care Act (ACA) which extended civil rights protections banning sex discrimination to health programs and activities, would prevent health insurers, hospitals, nursing homes, physicians and any providers who receive “federal financial assistance” from denying care coverage on the basis of gender identity, race, national origin, sex, age or disability, lest they lose federal funding. “This rule actually contains the most significant affirmation of the rights of transgender individuals of equal treatment in health care and health insurance that has existed anywhere in the law,” law professor at the University of Michigan Samuel Bagenstos said.

Members of the transgender community have encountered many hurdles in the quest for medical care. For instance, a person who was born as a woman but identifies as a transgender man – yet has not had gender reassignment surgery – might be refused insurance coverage for a Pap smear, as explained by National Health Law Program lawyer Mara Youdelman on the New York Times. “There was nothing to prohibit the exclusion of those services by an insurer,” she said. Similarly, insurance seldom cover hormone therapy and mental health counseling associated with transition, while many healthcare providers deny care, making transgender people wary of seeking care at all. “Until now, the promise of health reform has not really been reached for many transgender people,” director of policy for the National Center for Transgender Equality Harper Jean Tobin said. “It’s been very common to have these categorical exclusions that say there’s no coverage of anything related to gender transition, no matter how medically necessary. This says that in plans that are covered, which is a lot of public and private plans, that’s no longer permissible.”

A recent study published in the journal Health and Social Work found that more than 4 in every 10 female-to-male transgender people experienced discrimination in the healthcare system. Furthermore, “we have ample evidence that there continues to be a persistent problem with discrimination in the health care industry. We get thousands of complaints every year that challenge discrimination based on race, color, national origin, age, sex and disability,” director of the Office for Civil Rights at the Department of Health and Human Services Jocelyn Samuels said during a conference call with the press. But the proposed rule would bar health providers from refusing transgender patients the use of facilities consistent with the gender that they identify as, among other forms of discrimination. In fact, transgender advocates claim that the language of the proposal alone is a triumph.

The ACA had already forbidden sex discrimination, and the Obama administration claimed that protections for transgender people were implied in the Affordable Care Act’s rules on discrimination against race, color, national origin, disability, or age. However, advocates prodded the Department of Health and Human Services (HHS) to spell it out, just in case. The new regulation would cross the T’s and dot the I’s so that there is no misunderstanding that transgender people are also protected from discrimination. “This proposed rule is an important step to strengthen protections for people who have often been subject to discrimination in our health care system,” HHS secretary Sylvia Burwell said in a news release. Or, in the words of Youdelman, it “puts the meat on the bone.” She added that “for the first time, you can’t discriminate in health care because of someone’s sex. And the regulation that we got today greatly elucidates what’s expected.”

The proposal is the latest in a series of measures taken by President Obama to improve transgender rights, including last month’s announcement that the Brooklyn Hospital Center in New York agreed to a policy change to make sure that transgender patients are treated equally. The new regulation does not specify any particular treatments – such as gender confirmation surgery – that must be covered under the civil rights provision of the Affordable Care Act. Moreover, it allows insurers to decide whether care is necessary for individual patients. On the other hand, though, it requires insurers and providers to prove that their policies are not designed to discriminate people on account of their gender identity, and prevents them from imposing blanket bans on services associated with gender reassignment, as is currently often the case. As a result, a patient who identifies as male could not be denied ovarian cancer treatment. Otherwise, that patient would be entitled to file a lawsuit against the provider.

In addition to transgender rights, the proposal contains the following protections:

  • Women must be treated equally with men in the healthcare that they receive.
  • Clear guidance on the requirements of the law with regard to provision of language services, such as oral interpreters and written translations for people with limited English proficiency, so that individuals are able to communicate with their health care providers to describe their symptoms and understand the treatment they have been prescribed.
  • 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 for individuals with disabilities. 

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