December 31, 2016
Statement on Temporary Block on Enforcing Federal Health Care Nondiscrimination Rule
Washington, DC — Today a single federal judge, disagreeing with most federal courts that have considered the question, held that the Affordable Care Act does not protect transgender people from discrimination and that, if it did, religious entities nevertheless had a right to discriminate against transgender patients. The court temporarily ordered the Department of Health and Human Services (HHS) not to enforce a rule applying the ACA's gender discrimination protections in cases involving transgender people. The judge also ordered HHS to permit discrimination against patients seeking reproductive health care and against patients who have had an abortion in the past.
"This is another predictable, baseless ruling by a judge who state officials hand-picked to deliver a ruling against transgender people," said NCTE Executive Director Mara Keisling. "Numerous other courts have rejected Judge O'Connor's reasoning. Every major medical association in this country agrees that transition-related medical care is medically necessary and even life-saving for many people. Moreover, this care is about access to all health care - the court has ordered HHS to permit any hospital to turn trans patients away for any type of care - a broken arm, pneumonia, anything. Fortunately, one judge can't change the fact that providers or insurers who discriminate are still breaking the law and can still be sued."
After years of lobbying from a broad coalition of patient advocates, two separate public comment periods with over 25,000 public comments, and a review of over a decade of case law, the Department of Health and Human Services published final regulations to implement this part of the ACA. The rules aimed to make sure that health care facilities are accessible for people with disabilities, that translated materials and interpretation are available when people with limited English proficiency need them most, and that women aren’t charged more for health care. It also said that patients can’t be turned away just because they’re one of the over 1.4 million Americans who are transgender.
HHS’ rule prohibits health care providers from turning transgender patients away simply because of who they are. It also prohibits insurers from charging transgender people more or refusing care simply because of a person's transgender status. The rule does not limit providers or insurers from making individual decisions based on medical needs. In a recent national survey of nearly 28,000 transgender adults, one-third (33%) of those who saw a health care provider in the past year reported experiencing mistreatment based on their transgender status during that last year, including harassment, physical abuse, and being turned away by a provider. Nearly one-quarter of respondents (23%) reported avoiding health care when they were sick or injured in the last year because they feared discrimination.
Filings in the court case make several false claims about transition-related health care and the judge bought them. The American Medical Association, American College of Physicians, American Psychiatric Association, and every other major medical association agrees that these treatments can preserve health and prevent terrible suffering. Medicare and Medicaid cover transition-related care on the basis of medical necessity, as do federal and many state employee health plans. The Defense Department recently reviewed the medical science and said it will cover all transition-related care on the basis of medical need. Most health insurers have eliminated transgender exclusions in their Marketplace plans as of 2017, and several studies have shown that coverage does not increase overall health care costs. In recent years, 18 states and DC in addition to the federal government have directed insurers to eliminate transgender exclusions.
Additional information about NCTE’s efforts to win life-saving change for transgender people can be found at www.transequality.org.