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HHS Issues ACA Regulations Banning Anti-Trans Discrimination in Health Care and Insurance Coverage

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Contact Name
Ash Orr (they/he)

Today, the U.S. Department of Health and Human Services (HHS) announced final regulations around the non-discrimination section of the Affordable Care Act (ACA). The regulations state that it is now clearly illegal to deny healthcare coverage related to gender transition. Given that coverage exclusions still exist in many health insurance plans, these regulations will benefit a huge number of transgender people across the country who have been denied the healthcare they need.

In response to these final regulations, NCTE Executive Director Mara Keisling said:

This is a historic day for transgender people and their families, who have suffered without the health care they need for too long. Equal coverage and equal treatment are medically, legally, financially, and morally right, but too often, they have been out of reach for transgender people. We applaud Secretary Sylvia Burwell and the Obama Administration for taking action to end discrimination, and we hope that insurance companies and healthcare institutions will take swift action to comply with these regulations.

According to the new regulations, insurance plans cannot deny coverage for medically necessary medications, surgeries, and other transition-related treatments for transgender people in a discriminatory way, such as when they cover the same services for people who are not transgender or when they do not have a legitimate, medically-supported reason to exclude the service. Coverage of transition-related care is already in place for federal employee health insurance plans, the federal Medicare program, and insurance plans for 40 percent of Fortune 500 employers. Every major medical association in the nation opposes transgender health exclusions. Seventeen states and D.C. have similar rules banning exclusions in health insurance plans already.

While the ACA protects all LGBT people from healthcare discrimination, the final regulation stops short of saying in plain terms that it covers discrimination based on sexual orientation in the absence of evidence that the discrimination is connected gender stereotypes. In substance, the regulation covers most and potentially all forms of discrimination based on sexual orientation, but its language should be clearer. We strongly urge HHS to clarify through additional guidance and enforcement what a growing number of courts and the Equal Employment Opportunity Commission have already recognized: that all forms of discrimination based on sexual orientation as well as gender identity are unlawful.

NCTE has advocated strongly for these national protections since the ACA was first proposed in 2009. We filed extensive comments on the proposed regulation, along with comments from 3,000 transgender people and allies. In all, HHS received over 20,000 comments supporting LGBT equality in health care, including support from the broader civil rights community, health care providers, and faith groups. We look forward to seeing further guidance and enforcement actions that allow all LGBT people to have access to the health care they need.

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