New Rules Bar Transgender Discrimination In Health Care

Obama's push for transgender rights reaches the health care system.

WASHINGTON -- The Obama administration is making a major push for transgender rights by prohibiting health insurance companies and medical providers from discriminating against patients because of their gender identities.

Under a proposed regulation issued by the Department of Health and Human Services Thursday, transgender people would be entitled to equal treatment in health care and would gain the legal right to make civil rights claims against insurers, doctors, hospitals and others who deny them coverage or necessary care because they are transgender. That includes forbidding health insurers from categorically excluding treatments related to gender transitions.

Transgender people can face significant barriers to getting medical care, as insurers often won't cover treatments such as hormone therapy and mental health counseling, especially when this care is related to transitioning, and health care providers sometimes refuse care. According to a recent survey, more than 4 in 10 female-to-male transgender people reported discrimination in the health care system.

"Sadly, 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," Jocelyn Samuels, director of the Office for Civil Rights at the Department of Health and Human Services, said during a conference call with reporters Thursday.

Last month, the department announced that the Brooklyn Hospital Center in New York had agreed to change its policies to ensure equal treatment of transgender patients after a woman complained the hospital forced her to share a room with a male patient.

The health care regulation is the latest in a series of actions President Barack Obama has taken to advance transgender rights, including tangible steps like making it easier for people to get new passports that reflect their gender identity and symbolic gestures like mentioning transgender people during his State of the Union address.

The Affordable Care Act already prohibited health insurance companies and medical providers from discriminating against patients based on sex, and the new rules would explicitly extend those protections to transgender people.

Previously, the administration maintained that protections for transgender people were inherent in the Affordable Care Act's anti-discrimination rules, but advocates urged the Department of Health and Human Services to issue a specific declaration. The regulation announced Thursday is merely a proposal, and must be finalized after the department receives public comment.

"This proposed rule is an important step to strengthen protections for people who have often been subject to discrimination in our health care system," Health and Human Services Secretary Sylvia Burwell said in a press release.

The new rules don't force insurers to cover any specific treatment -- including gender confirmation surgery -- but do require them to demonstrate their coverage policies aren't designed to discriminate against people because of their gender identity. For example, insurers and medical providers wouldn't be allowed to refuse ovarian cancer treatments to a patient who identifies as a man. The rules also provide patients a legal recourse if they believe they aren't being treated equally.

These stronger protections for transgender people apply to all federal health programs operated by the Department of Health and Human Services, such as Medicare and Medicaid; all insurance companies that sell policies on the Obamacare exchanges or cover Medicare or Medicaid patients; and any hospital or doctor who receives payments for treating Medicare and Medicaid patients.

The rules would leave in place exemptions for religious organizations, and would preserve the "conscience clause" allowing medical providers to ignore the rules because of religious beliefs.

CORRECTION: An earlier version of this story incorrectly stated most employer-sponsored health insurance plans won't be subject to the proposed anti-discrimination rules. The regulation would cover all insurance companies that do business with government programs like Medicare, Medicaid and the health insurance exchanges, and therefore would apply to plans offered to employers for their workers.

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