May 13, 2016 at 12:12 pm EDT | by Chris Johnson
HHS makes final rule prohibiting anti-LGBT bias in health care
gender reassignment, transgender, caduceus, medicare, gay news, Washington Blade, health

The Obama administration has made final a rule clarifying anti-trans discrimination is prohibited in health care.

The Obama administration has made final a proposed regulation clarifying the prohibition on gender discrimination in the Affordable Care Act applies to transgender and gender non-conforming people.

The 362-page rule, which LGBT advocates announced on Friday was final, was first proposed in September by the Department of Health & Human Services to make clear anti-trans discrimination is prohibited in health care and insurance. The effective date of the rule is July 18.

Neera Tanden, CEO of the Center for American Progress, commended the Obama administration for the rule, which she said makes clear anti-LGBT discrimination is prohibited under Section 1557 of the Affordable Care Act.

“This rule is a critical step forward in expanding access to health care for millions of people; reducing health disparities; and clarifying the scope of Section 1557’s protections, including vital protections from discrimination in health insurance coverage and health care on the basis of sex,” Tanden said. “In particular, the rule confirms that LGBT individuals are protected from discrimination regardless of their gender identity or nonconformity with sex stereotypes, including identification as gay, lesbian, or bisexual.”

According to LGBT advocates, the rule requires insurance plans to cover transition-related medications, gender reassignment surgeries and other treatments for transgender people if these plans cover similar services to non-transgender people with other medical conditions.

Although the proposed rule only sought to clarify the prohibition on gender discrimination applies to gender identity, the final rule notes commenters sought to include non-binary identities within the scope of the definition of gender. As a result, the final rule was modified to include them.

“The first sentence of the definition of gender identity has been revised to reference the application of the rule to individuals with non-binary gender identities,” the rule says. “OCR also made a technical edit to the last sentence to delete reference to the term ‘transgender identity.’ Finally, for clarity and consistency within the final rule, OCR has made a technical revision to the definition of gender identity to clarify that a transgender individual is an individual whose gender identity is different from the sex assigned to that person at birth.”

Although the final rule doesn’t explicitly mention sexual orientation, LGBT advocates say the inclusion of sex stereotyping in the rule means it applies not just to transgender people, but also gay, lesbian and bisexual people.

One issue on which the proposed rule sought solicitation during the comment period was whether a religious exemption should be included for insurers who might object to providing services to LGBT people for religious reasons. The final rule says the Obama administration “decided against including a blanket religious exemption in the final rule.”

Chad Griffin, president of the Human Rights Campaign, was among those praising the Obama administration for clarifying anti-LGBT discrimination is prohibited in health care.

“Access to healthcare should never be denied because of your sexual orientation or gender identity,” Griffin said. “LGBT people have too often faced healthcare systems that provide inequitable and hostile treatment. This new and important regulation will address many of these disparities and is critical to help end discrimination against transgender and gender nonconforming people in healthcare and insurance. The Affordable Care Act has made a tremendous impact on the lives of millions of Americans, and this regulation makes clear that LGBT people and their unique needs are included in the protections it provides.”

Although the final rule is new, the Obama administration has already enforced the Affordable Care Act to prohibit discrimination against transgender people for some time. In July 2012, HHS affirmed in a letter to LGBT advocates the gender non-discrimination provisions in the Affordable Care Act apply to transgender people.

The lack of formal guidance hasn’t stopped at least one court from applying the Affordable Care Act to cases of transgender discrimination in health care. Last year, a federal court ruled that a trans youth who faced discrimination and mistreatment at a Minnesota hospital could sue under the Affordable Care Act.

Meghan Maury, criminal and economic justice project director for the National LGBTQ Task Force, hailed the rule for the protections it affords LGBT people.

“In essence, the new guidance clarifies that discrimination against lesbian, gay, bisexual, and transgender people is prohibited in health care settings, including clinics, hospitals, mental health facilities, and doctor’s offices,” Maury said. “While sexual orientation is not explicitly included in the rule, as courts clarify the legal basis for sexual orientation protections, we expect HHS to provide updated clarification as well. And of course the HHS will accept complaints on the basis of sex discrimination from lesbian, gay, bisexual, and transgender people.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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