HHS: Health Reform Law Prohibits Antitransgender Bias in Care

By Trudy Ring

Originally published on Advocate.com August 06 2012 5:45 PM ET

Transgender people, who often face barriers to obtaining health care, now clearly have the federal government on their side in the fight against discrimination.

The U.S. Department of Health and Human Services, responding to an inquiry from several LGBT groups, has clarified that the health care reform law’s provision banning sex discrimination covers discrimination against transgender and gender-nonconforming people. In his response, issued in July, HHS civil rights director Leon Rodriquez states, “We agree that [the health care law’s] sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and will accept such complaints for investigation.”

Among those welcoming the response is Mara Keisling, executive director of the National Center for Transgender Equality, one of the groups that made the inquiry. “We have always believed that sex discrimination laws protected transgender people,” she says. “We haven’t always gotten the courts to agree to that. And this is the first time HHS has said so.”

The 2010 law, formally known as the Patient Protection and Affordable Care Act, prohibits health care providers that receive federal funds, as nearly all of them do, from discriminating on any basis enumerated in the Civil Rights Act of 1964 and other federal laws, including gender. The statement that this encompasses gender identity and expression “is an important clarification for all transgender people, who so often face extraordinary barriers in accessing health care,” says Masen Davis, executive director of the Transgender Law Center, another organization involved in the inquiry.

Adds Maya Rupert, federal policy director for the National Center for Lesbian Rights: “Transgender people face severe discrimination in health care settings and are often denied care completely. ...

We are grateful to HHS for clarifying this important policy and providing transgender people with the security of knowing they are included in the administration’s commitment to the health and well-being of all Americans.”

Keisling points out that a survey performed a couple of years ago found that 20% of the transgender people in the sample had been denied health care. “That’s now clearly illegal from HHS’s point of view,” she says. Keisling adds that the measure is helpful not only to transgender people but to gender-nonconforming lesbian, gay, and bisexual Americans.

If you believe you have been discriminated against because of your gender identity and expression, Keisling says, “you’ve got to file a complaint.” There are several LGBT legal groups that will assist with that, she notes.

Ever since the Affordable Care Act went into effect, opponents have been pledging to repeal what they call “Obamacare,” and the rhetoric has become more intense this year, given the presidential election campaign and the U.S. Supreme Court’s ruling upholding the law. Keisling, however, thinks repeal is unlikely.

Noting that the provisions of the act are going into effect on various dates over several years (the antidiscrimination section went into effect with the law’s passage), she says, “Every time a provision of the Affordable Care Act went into effect, it became wildly popular.” Even some of those calling most loudly for repeal, she adds, would like to leave certain parts of the law in place.

“I think by the time they get around to repealing it,” she says, “there won’t be anything left to repeal.”

Response on LGBT People in Sec. 1557 in the Affordable Care Act from the U.S. Dept. of Health and Human Ser...Letter Seeking Clarification on LGBT People and Sec. 1557 of the Affordable Care Act