Healthcare Protections for the MA Transgender Community: Questions and Answers About State Protections and Attacks from the Trump Administration
You deserve and should expect to be treated fairly when accessing health care. If you do experience discrimination, contact GLAD Answers or Massachusetts Transgender Political Coalition and let us know.
What has the Trump administration done to threaten healthcare protections for transgender people?
On June 12, the federal Department of Health and Human Services released a final rule formalizing the Trump administration’s position that the nondiscrimination provision in the Affordable Care Act (known as Section 1557) does not protect transgender people from discrimination in health care, reversing HHS’s prior interpretation of the law.
This move is the latest in a long line of dangerous attacks from the Trump administration targeting transgender people for political gain. It has the potential to cause confusion for providers, insurers, and employers, and to embolden those who wish to discriminate.
While this is cause for concern, there are two pieces of good news:
1) Massachusetts provides robust protections for transgender people in healthcare and
2) Following the June 15 Supreme Court ruling affirming federal LGBTQ workplace protections, there is good reason to believe the Trump administration’s interpretation of Section 1557 will ultimately not survive legal challenges.
Are transgender people in Massachusetts still protected from discrimination in healthcare?
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.
What are the Protections for Access to Health care for Transgender People Under Massachusetts Law?
Insurance Coverage Directives Require Coverage for Gender-Affirming Care
The Massachusetts Division of Insurance – which oversees private health insurance plans – the Group Insurance Commission – the agency overseeing health care plans for state employees – 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.
These directives are based on state law, are independent of federal law, and should not change. In fact, following the Trump administration’s June 12 announcement about its new interpretation of Section 1557, MassHealth issued a statement affirming the HHS rule would not have any negative impact on MassHealth coverage and treatment for transgender patients.
State Law Protects Transgender People from Discrimination in Access to Health Care
Massachusetts also 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 does the Trump administration’s reversal of transgender healthcare nondiscrimination protections under the Affordable Care Act mean?
The Trump administration has reversed an Obama-era rule that clarified that the prohibition against sex discrimination in the Affordable Care Act (ACA) bars discrimination against transgender people. That prior interpretation is in line with two decades of federal court rulings and the Bostock case recently decided by the United States Supreme Court. The new Department of Human Services (HHS) rule formalizes the Trump administration’s position that for the purpose of federal enforcement, discrimination against transgender people is not a form of sex discrimination and not prohibited under the ACA.
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 receive federal funds and that violate the ACA. HHS’s new interpretation that Section 1557 of the ACA excludes protections for transgender people, means our federal government won’t take action against entities that deny healthcare access or coverage to transgender people.
That is dangerous because it diminishes protections at the federal level and sends the message that it is okay to discriminate.
If HHS won’t protect transgender people from discrimination, are there other ways people can seek relief for healthcare discrimination under federal law?
Yes. People can also seek relief directly through the federal courts. The ultimate meaning of the non-discrimination protections under the ACA is up to the courts, not the Trump administration. And several federal courts have already agreed that transgender people are covered under the ACA’s prohibition against sex discrimination.
Importantly, on June 15, 2020, in a landmark ruling about federal LGBTQ workplace protections, the U.S. Supreme Court affirmed that transgender status discrimination is a form of sex discrimination. While that ruling does not automatically settle the question in the healthcare context, it makes it much harder for the Trump administration – or anyone else – to argue that prohibitions against sex discrimination don’t protect transgender people.
GLAD has a case in federal court right now challenging the denial of healthcare to a transgender man under the ACA’s non-discrimination provision. This case, Pangborn v. Ascend, will test the legitimacy of the Trump administration’s cruel, unjust and we believe unlawful position.
What can we do?
First, know your rights in healthcare and remember that you are protected under Massachusetts law. No matter how HHS interprets 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 Department of Insurance 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 TreAndreValentine@masstpc.org.
Message from MassHealth on federal changes to Section 1557 of the ACA and the impact on the LGBTQ community:
On June 12th, the Trump Administration announced changes to its interpretation of Section 1557 of the Affordable Care Act. These changes remove certain federal nondiscrimination in health care protections for members of the LGBTQ community, and in particular, for transgender individuals. Additionally, the change weakens federal requirements related to translation and language access. MassHealth submitted a letter in opposition to these changes on August 13, 2019 to the federal Department of Health and Human Services when they were first announced in draft form. Monday’s Supreme Court decision concluding that Title VII of the Civil Rights Act protects LGBTQ individuals from employment discrimination may further impact the administration’s changes to Section 1557.
We want to expressly emphasize that these federal changes have not changed MassHealth’s commitment to providing all medically necessary MassHealth services to LGBTQ individuals who are MassHealth members, including transgender members. Nor do these federal changes affect our commitment to ensuring LGBTQ members can access MassHealth covered benefits free from unlawful discrimination. We want to reiterate that various other state laws and regulations, as well as MassHealth managed care contracts, continue to prohibit discrimination in health care for the LGBTQ community and require meaningful language access for MassHealth members. Plans and providers must continue to ensure compliance with these nondiscrimination requirements.
The Massachusetts Attorney General’s Office is building a case to challenge the federal administration’s rewrite of Section 1557 non-discrimination regulations. Specifically, the AGO would like assistance in identifying trans and nonbinary individuals with private health insurance + MassHealth, where the private plan denied, excluded, or otherwise didn’t cover a service that MassHealth then covered. The private plan can be self-insured or fully-insured. If your care or service was denied by a private plan and later covered by MassHealth please send an email to: email@example.com.
Posted on July 1, 2020
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