Transgender Rights | Healthcare | New Hampshire

New Hampshire Transgender Healthcare Rights Q&A 

Can health care plans discriminate against LGBTQ+ people?

In general, under federal and New Hampshire state law, nearly all health plans cannot discriminate on the basis of sex, and, because the Supreme Court ruling in Bostock v. Clayton Co. concluded that all gender identity and sexual orientation discrimination is a form of sex discrimination, nearly all health plans cannot discriminate against LGBTQ+ people.

What health care plan protections are provided by New Hampshire?

New Hampshire Law

RSA 415:15 prohibits “discrimination on the basis of gender identity with respect to the availability of any covered services, medications, supplies, or durable medical equipment.” 

RSA 417:4, VIII(b) prohibits “discrimination on the basis of gender identity with respect to the availability of any covered services, medications, supplies, or durable medical equipment.”

The Patient’s Bill of Rights law (RSA 151:21 XVI) states: 

“The patient shall not be denied appropriate care on the basis of age, sex, gender identity, sexual orientation, race, color, marital status, familial status, disability, religion, national origin, source of income, source of payment, or profession.” 

New Hampshire Insurance Department

Based on the above laws, in 2020 the New Hampshire Insurance Department issued a bulletin which stated in part: 

“. . .insurers are prohibited from denying, excluding, or otherwise limiting coverage for medically necessary services, based on an individual’s gender identity. Any offered services, medications, supplies, or durable medical equipment in a health insurance policy or contract must be provided to all individuals for whom a medical provider, in consultation with the individual patient, has determined that the services are medically necessary… Insurers should base coverage decisions on medical necessity rather than a person’s gender identity. The Department considers any blanket policy exclusions for health care services related to gender transition or any other form of gender dysphoria treatment as a violation of RSA 417:4, VIII(b) and RSA 415:15 in that such exclusions discriminate on the basis of gender identity.”

New Hampshire Medicaid

In 2017, the Joint Legislative Committee on Administrative Rules (JLCAR) approved proposed regulations from the Department of Health and Human Services that ended the discriminatory exclusion from Medicaid coverage of gender-affirming surgeries.

New Hampshire Medicaid coverage includes the following gender-affirming services, providing there is documentation of medical necessity: 

• Mastectomy 
• Breast augmentation
• Hysterectomy 
• Salpingectomy
• Oophorectomy 
• Genital reconstructive surgery

Are there any health care plans that are not protected under New Hampshire law?

Yes. Medicare and employer health plans that are self-funded (also known as self-insured) are governed by federal law.

What health care plan protections are provided by the federal government?

Medicare

In 2013, Medicare removed the ban on coverage for treatment of gender dysphoria because it was “experimental” and began to cover medically necessary treatment for gender dysphoria.

Section 1557 of the Affordable Care Act (ACA)

Section 1557 makes it unlawful for any health care provider that receives funding from the Federal government to refuse to treat an individual – or to otherwise discriminate against the individual – based on sex (as well as race, color, national origin, age or disability). Section 1557 imposes similar requirements on health insurance issuers that receive federal financial assistance. Health care providers and insurers are barred, among other things, from excluding or adversely treating an individual on any of these prohibited bases. The Section 1557 final rule applies to recipients of financial assistance from the Department of Health and Human Services (HHS), the Health Insurance Marketplaces and health programs administered by HHS.

Section 1557 generally does not apply to self-funded group health plans under ERISA or short-term limited duration plans because the entities offering the plans are typically not principally engaged in the business of providing health care, nor do they receive federal financial assistance.

In May 2021, the Biden Administration announced that the Health and Human Services Office for Civil Rights (OCR) would interpret and enforce Section 1557 of the ACA and Title IX’s nondiscrimination requirements based on sex to include sexual orientation and gender identity. The update was made in light of the June 2020 U.S. Supreme Court’s decision in Bostock v. Clayton County and subsequent court decisions.

In enforcing Section 1557, OCR will comply with the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., and all other legal requirements and applicable court orders that have been issued in litigation involving the Section 1557 regulations.

Title VII

For employers with 15 or more employees, Title VII bans discrimination on the basis of race, color, religion, sex and national origin in hiring, firing, compensation, and other terms, conditions or privileges of employment. Employment terms and conditions include employer-sponsored healthcare benefits. Historically, not all authorities have agreed that Title VII protects LGBTQ+ workers against discrimination.

However, the Supreme Court decision in Bostock v. Clayton Co. changes this because that ruling made it clear that sexual orientation and gender identity discrimination are forms of sex discrimination. Although the decision is about wrongful employment termination, it has implications for employer-sponsored health plans and other benefits. For example, employers may want to adjust group health plan coverage of gender dysphoria and related services, including gender-affirmation surgeries and review and compare benefits for same-sex and opposite-sex spouses.

Can religious employers discriminate against LGBT people?

On July 8, 2020, in Our Lady of Guadalupe School v. Morrissey-Berru, the United States Supreme Court reaffirmed its stance on the application of ministerial exception to employment discrimination cases as established in earlier rulings. In doing so, the Court simultaneously raised an unanswered issue under Title VII: does the ministerial exception for religious employers allow those organizations to discriminate against employees or candidates based on their LGBTQ+ status?

It’s unclear at this point how the Court’s ruling in Our Lady of Guadalupe School v. Morrissey-Berru may impact the LGBTQ+ employees of religious employers, but religious organizations and employers should recognize that the ministerial exception does not apply to every position within their organizations. Rather, it is limited to those employees who truly perform religious duties. For example, the position of a school janitor who is only present in the building outside of school hours and is not responsible for transmitting the faith would likely not be considered ministerial in nature

What steps can I take to get coverage for treatment of gender dysphoria?

1. First check to see if your health plan provides coverage for the type of treatment that you want by getting a copy of the plan’s “Summary of Benefits and Coverage”. 
2. Most insurance plans, both public and private, have detailed requirements that must be met in order to obtain coverage. This is particularly true if you are trying to obtain coverage for transition-related surgery. So, contact your health plan and request a copy of the requirements for the treatment you are seeking. 
3. Work with your therapists and doctors to make sure that you satisfy all the health plan’s requirements. Documentation from your therapists and doctors is the most critical factor in determining whether your treatment request will be approved. 
4. Check what treatment requires pre-approval. In most cases, any surgery will require pre approval, and the plan may only pay if you use a surgeon that takes their plan. 
5. If your treatment request is denied, find out the reasons for the denial, and, if you still think that you qualify for the treatment, follow the plan’s appeal process. Usually there will first be an internal appeals process, and, if you are not successful there, you can sometimes appeal to an outside agency. Make sure that you adhere to the deadlines—failure to meet a deadline can automatically end your ability to appeal. 
6. Keep GLAD informed if you are denied treatment. GLAD may be able to offer suggestions that can help you win your appeal. You can contact GLAD Answers by filling out the form at GLAD Answers or by phone at 800-455-GLAD (4523). 
7. Although more health plans now cover treatment for gender dysphoria, the process for obtaining treatment, particularly for transition-related surgery, can be time consuming and frustrating. A great deal of documentation is required and finding a surgeon that does the type of surgery, and who is also acceptable to the health plan, can be difficult. 
8. Don’t be afraid to be persistent and to refile if you are denied. 

How do I find a surgeon who will take my health insurance?

More and more surgeons who perform sex reassignment surgeries take health insurance. You should research surgeons carefully to find one who is a good fit for you. You can look at the list of in-network providers provided by your plan to see if they are included or if it includes any surgeons in your area, and if not, you can contact the surgeon’s office to determine if they accept your insurance. Most health insurance plans require that you use a medical provider in your network, but if your network does not include a surgeon who performs the services you need, you may be able to go out of network if you seek prior authorization from your plan.

What should I do if I am being discriminated against in health care?

If you are being discriminated against by a health care facility or provider, you can file a discrimination complaint with the New Hampshire Commission for Human Rights. See the “Discrimination” Issue Area for detailed information about how to do this.

If you have a health care plan that is regulated by the New Hampshire Department of Insurance, you can file a complaint with that agency: New Hampshire Insurance Department – Complaint Filing.

If you have a health care plan that is governed by Section 1557 of the ACA, you can file a complaint with the federal Department of Health and Human Services Office of Civil Rights. For more information, see: How to File a Civil Rights Complaint. 

If you have a self-funded health care plan through an employer with at least 15 employees, you can file a discrimination complaint with the federal Equal Employment Opportunity Commission (EEOC). For more information, see the “Discrimination” Issue Area.

Resources

New Hampshire Medicaid Handbook: New Hampshire Medicaid Care Management Program Member Handbook. 

The New England Transgender Healthcare Consortium consists of providers from over one dozen healthcare facilities in New England who are dedicated to improving access to gender affirming. For more information, see:  New England Gender CARE. 

New Hampshire Health Care Guidance: Health Insurance Guidance – New Hampshire.

New Hampshire Transgender Resources:  New Hampshire transgender resources. 

Legal Defense & Education Fund memo to plan administrators on liability for transgender health care exclusions:  Liability for Transgender Health Care Exclusions in Employer Health Plans 

Health Insurance Medical Policies: Health insurance Medical Policies. 

Out2Enroll ACA plan information for 2022: Plan Information for 2022 – Out2Enroll. 

Transgender health care: Transgender health care coverage | HealthCare.gov. 

HHS will enforce Section 1557 to protect LGBT people: HHS Will Enforce Section 1557 To Protect LGBTQ People From Discrimination | Health Affairs. 

National Center for Transgender Equality (NCTE): Know Your Rights in Health Care: Know Your Rights: Healthcare.

NCTE Health Care Guide:  Health Coverage Guide | National Center for Transgender Equality. 

EEOC Title VII discrimination protections for LGBT people: Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity.

Guide to Gender Surgeons: TransHealthCare.

Cases & Advocacy

To see Transgender Rights cases or advocacy which GLAD has been directly involved with in New Hampshire, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Transgender Rights” and under “By Location” click on “New Hampshire.”

News & Press Releases

To see news and press releases about Transgender Rights in New Hampshire, go to: News & Press Releases – GLAD and under “By Issue” click on “Transgender Rights” and under “By Location” click on “New Hampshire.”