BY JAY KAPLAN
On Sept. 3, 2015 the United States Department of Health and Human Services issued its proposed rules on anti-discrimination protections under the Affordable Care Act. These proposed rules have been long and eagerly awaited by the transgender community. The regulations make it clear that transgender people are protected against discrimination in both health insurance coverage and health care insurance, under the theory of sex discrimination. For example, if a private or government insurer covers estrogen treatments for a cisgender woman going through menopause, it cannot refuse to cover such treatments for a transgender woman, whose doctor has determined them to be medically necessary.
While the proposed regulations do not mandate an affirmative duty by insurers to cover gender confirmation (or gender reassignment surgery), some procedures related to gender reassignment surgery that are covered for cisgender persons, such as a hysterectomy or top surgery, may also have to be covered for transgender persons. These proposed regulations go a long way towards redressing a long shameful history of policies and practices that have put transgender people on the margins of the health care system, unable to get a foot in the door.
For years, private health insurers have had blanket exclusions for transgender related health treatment, including hormone therapy, which is a standard accepted treatment for gender dysphoria according to the World Professional Organization for Transgender Health (WPATH). The ACA was designed to increase access to health care for millions of uninsured Americans, including transgender people. However, the way the ACA has been implemented in the state of Michigan has denied that promise for many in the transgender community. The ACA requires all participating states to select a state benchmark insurance plan that sets a minimum standard of coverage for all other participating health insurance companies to adhere to. Michigan chose Priority Health as its benchmark plan. However, Priority Health, in its policy for small employers, denies coverage for any medical service or procedure related to gender transition. As a result of this, some private insurers like Blue Cross Blue Shield that were previously covering hormone therapy are now refusing to pay for such therapy, citing Priority Health's exclusion as part of the state's benchmark plan.
In addition, Michigan's Medicaid and expanded Medicaid programs prohibit payment for any medications related to gender identity conditions, depriving the most financially needy of transgender persons access to essential medications necessary for their transition. This policy was developed by the Department of Health and Human Services, more than a decade ago, with no public input and clearly with a disregard for medical science and treatment standards. Clearly, both private and public insurance policies would be in violation of the proposed regulations and could be challenged.
In a recent survey conducted by the Transgender Center for Equality, 19 percent of transgender persons reported being refused medical care, 28 percent were subjected to harassment and 2 percent said that they were victims of violence in doctor's offices. Such statistics clearly point out the need for comprehensive reform. These proposed regulations provide an important and much needed tool to challenge the widespread discrimination against transgender people in accessing health services and point the way to reforming unfair private and public policies and practices that have denied access.
