WASHINGTON – The Obama administration proposed Thursday to ban discrimination against transgender people throughout the health care system, carrying out anti-bias provisions in the president’s health overhaul.
The new protections are part of a much broader proposed regulation by the Department of Health and Human Services. In a first, the Affordable Care Act specified that sex discrimination is prohibited in health care, and the regulation carries that a step further, clarifying that “gender identity” is included within that protective umbrella.
“This is a huge step,” said Michael Silverman, director of the Transgender Legal Defence and Education Fund in New York. “It covers a lot of ground.”
The new transgender policy comes at a time when social attitudes about sexuality and gender are undergoing a major shift. The Supreme Court recognized a constitutional right for same-sex couples to marry, and the gender transition of Olympian Bruce Jenner from male to female — Caitlyn — has brought new awareness about a group of people often ostracized by society.
The long-delayed rule amounts to a manual for carrying out the nondiscrimination section of President Barack Obama’s health law, which prohibits bias in medical care on the basis of race, colour, national origin, sex, age, or disability. Those underlying provisions already are in effect.
“Sadly, we have ample evidence that there continues to be a persistent problem with discrimination in the health care industry,” said Jocelyn Samuels, head of the HHS office of civil rights, which would enforce the proposed rule.
Samuels said the rule does not explicitly require insurers to cover gender transition treatment, including surgery. But insurers could face questions if they deny medically necessary services related to gender transition by man who identifies as a woman, or a woman who identifies as a man.
“It is basically a requirement that insurers use nondiscriminatory criteria,” Samuels told reporters.
Advocates for transgender people said no new coverage requirement was needed because insurers already pay for most of the needed services, such as hormone treatments and reconstructive surgery. The problem has been that insurers were not covering such services for people going through a gender transition.
“What the rule says is they cannot exclude transgender people from the services that other people have,” said Harper Jean Tobin, policy director for the National Center for Transgender Equality.
The new requirements would have impact throughout the health care system because service providers who accept federal dollars would have to comply.
Medicare and Medicaid are the cornerstone of hospital finances. That means transgender people could not be restricted from access to bathrooms or hospital wards consistent with the gender that they identify with, Samuels said.
Most doctors would be covered. Insurers that offer plans through HealthCare.gov would have to comply with the requirements in their plans off the health insurance exchange as well.
The regulation may not be final for many months. The public comment period extends through Nov. 6, and officials are seeking comment on a range of difficult issues, including religious conscience protections for service providers and whether sexual orientation — whether a person is a gay man or a lesbian — should also be protected.
Other advocates were disappointed with a separate section of the rule addressing discrimination in the design of insurance benefits. That can happen, for example, when an insurer requires patients to pay a large share of the cost for all drugs used to treat a given condition.
The AIDS Institute and the American Cancer Society Cancer Action Network said the regulation was not specific enough, and the final version needs to provide examples of benefit designs that would be considered discriminatory.