November 5, 2019
Healthcare Protections for the Massachusetts Transgender Community: Questions and Answers About State Protections and Threats at the Federal Level
October 29, 2019
The Trump administration and other opponents of LGBTQ equality are working to undermine key protections under the Affordable Care Act (ACA) that were designed to ensure transgender people have fair and equal access to healthcare.
Fortunately, however, Massachusetts has strong and comprehensive state-based laws that prohibit discrimination against transgender people in access to health care, including by insurers and health care providers. Those protections are not subject to the whims of the Trump administration.
The questions and answers below will cover the details of state-based protections, what the Trump administration is up to at the federal level, and what we can all do to ensure better access to healthcare for our transgender community.
While Massachusetts provides robust nondiscrimination protections including access to transition-related care, the Trump administration’s effort to rollback federal protections is nevertheless a cause of concern and confusion. That’s why it is so important to know your rights.
What are the Protections for Access to Health care for Transgender People Under Massachusetts Law?
In order to understand the impact of the Trump administration’s actions on access to health care for transgender people in Massachusetts, it is helpful to first understand state-based insurance protections.
The Massachusetts Division of Insurance, which oversees all private health insurance plans, and MassHealth, the state’s Medicaid agency, have each issued directives requiring the coverage of all medically necessary gender-affirming care, including hormone therapy and surgeries. The agency overseeing health care plans for state employees, the Group Insurance Commission, followed suit.
These directives are based on state law, are independent of federal law, and should not change.
In addition, Massachusetts has a state law prohibiting discrimination in access to “places of public accommodation” on the basis of a person’s gender identity. This law prohibits discrimination by health insurance companies in plan benefits as well as discrimination by a health care provider or entity, including hospitals and clinics.
This law also exists independent of the federal ACA (or other federal nondiscrimination laws) and will not change.
What is the Trump administration doing to undermine transgender healthcare nondiscrimination protections under the Affordable Care Act?
The Trump administration is seeking to reverse an Obama-era rule that interprets the Affordable Care Act (ACA) to prohibit discrimination against transgender people for the purpose of federal enforcement, and to replace it with a new rule that excludes those protections.
The federal Department of Health and Human Services (HHS) is charged with enforcing the nondiscrimination protections in Section 1557 of the ACA by taking action against entities (such as hospitals and insurance companies) that violate them. If HHS interprets Section 1557 of the ACA to exclude protections for transgender people, it means our federal government won’t take action against entities that deny healthcare access or coverage to transgender people. That’s dangerous because it diminishes protections at the federal level and sends the message that it is okay to discriminate.
It’s important to note that there is another avenue for addressing discrimination in healthcare, and that is directly through the federal courts. Even if HHS interprets Section 1557 to exclude transgender people, the ultimate meaning of the statute is up to the courts. A growing number of federal courts have come to understand that transgender status discrimination is a form of sex discrimination. Some successful claims of transgender status discrimination have already been brought in federal court under the ACA.
What is the status of the Trump administration’s proposed new HHS rule?
The Trump administration cannot change the HHS rule before completing a formal review process. That process has begun but not yet been finalized. So, at the moment nothing has changed in the HHS rule.
Tens of thousands of individuals and organizations submitted public comments opposing the rule over the summer, and the administration is required to review each of those comments before it issues a final, revised rule. However, we are likely to see the rule finalized in the next few months, if not sooner.
There has been a lot of news about a recent court ruling in a case called Franciscan Alliance v. Azar. How does that ruling impact healthcare for transgender people?
U.S. District Judge Reed O’Connor’s October 15 ruling received a great deal of media attention and caused a lot of consternation. But it actually does not change the current legal landscape around the rights of transgender people to access healthcare. That is because this ruling simply reaffirms and finalizes a prior 2016 ruling that enjoined HHS from following and enforcing its Obama-era interpretation (rule) that the ACA protects transgender people from discrimination.
Opponents of LGBTQ equality, now allied with the Trump administration, filed Franciscan Alliance seeking to undo the HHS rule interpreting Section 1557 of the ACA to protect transgender people, (as well as LGBQ+ people, and people who have had abortions) from discrimination immediately after it was issued under the Obama administration. Judge O’Connor quickly granted a temporary injunction blocking HHS from enforcing the rule in 2016. That injunction has been in place ever since while the legal case has proceeded, and consequently HHS has not been enforcing the rule. On October 15, Judge O’Connor issued a final order vacating the HHS rule, essentially formalizing what he had done with the initial injunction.
However, as mentioned above, while HHS has not been enforcing the rule people have been able to take discrimination cases directly to federal court. No HHS interpretation can change the non-discrimination provision of the ACA itself.
Are there other threats to transgender nondiscrimination protections in healthcare at the federal level?
Unfortunately, yes. You are likely aware of three cases pending before the United States Supreme Court regarding federal workplace protections for transgender and LGB people under Title VII of the federal Civil Rights Act. The Supreme Court will issue an opinion in this case on the question of whether anti-transgender discrimination is a form of sex discrimination under federal employment nondiscrimination law. Many federal courts have already reached the straightforward conclusion that it is. However, if the Supreme Court rules that it is not, it is likely to impact how the nondiscrimination provisions of many federal laws are understood – including the Affordable Care Act. Such an interpretation could limit the ability of transgender people to seek relief from healthcare discrimination in the federal courts.
What can we do?
First, know your rights in healthcare and remember that you are protected under state law. No matter how HHS or the Supreme Court interpret existing federal law, Massachusetts law prohibits discrimination in healthcare and prohibits private health insurers and our state Medicaid agency from having any exclusion of transition-related health care. Put another way, they are required to cover medically necessary gender affirming health services. That does not mean that some insurers won’t try to deny that some services are medically necessary for a particular individual. Those denials must be fought on a case-by-case basis.
Second, share your story. With the attacks on healthcare coming from the federal administration, it is more important than ever to ensure we have and keep the strongest possible protections under state law. The MA Trans Health Coalition is working to ensure an even stronger commitment from Massachusetts insurers and the DOI to protect healthcare access for transgender people. You can help this effort by sharing your story of healthcare discrimination, or what access to fair healthcare coverage means to you. To share your story, contact Tre’Andre Valentine, Executive Director of the Massachusetts Transgender Political Coalition, at email@example.com
Third, encourage your U.S. Senators to bring the federal Equality Act up for a vote. The Equality Act is a pending bill that would ensure clear, explicit, and consistent federal protections for transgender and LGB people across all areas of life, including healthcare, employment, education, housing and public accommodations. The Equality Act has already passed the House and now we need a vote in the Senate.