Two more federal judges have weighed in on the question of whether the Affordable Care Act contains a mandate to cover transition services, and their opinions are welcome news for the trans community: They affirmed that a sex discrimination clause in the ACA known as Section 1557 clearly requires equal coverage for trans care. These cases are an important part of the body of work that is improving access to insurance equity for the trans community.
At issue in these Wisconsin and Minnesota cases was the question of whether insurers could decline to cover transition services like hormones and surgery. Historically, many insurance companies have attempted to dodge their responsibility for this coverage, even though trans people are a minority and the burden on insurance companies is relatively minimal.
The Department of Health and Human Services is responsible for enforcing Section 1557, a nondiscrimination clause that includes sex. Many interpretations have said that trans people are covered under this blanket rule, which means that insurers cannot deny coverage simply because someone is trans.
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In other words, if someone needs reconstructive breast surgery, it should be covered, whether it’s a cis woman who had a mastectomy after breast cancer or a trans woman who wants an augmentation. Similarly, if a person needs a medically-indicated hysterectomy, it should be provided, and the patient’s gender is not relevant.
A recent religiously-motivated pro-discrimination suit in Texas attempted to argue that health care providers should be allowed to discriminate against trans people and those needing reproductive health care, and in 2016, a court issued an injunction preventing the HHS from enforcing part of Section 1557. HHS has decided that this injunction extends to trans people, but the judges in these cases disagreed. While neither of them set legal precedent with their ruling, both of them played an important role in adding to the body of work that clearly indicates transgender people should not be subject to health care discrimination.
These cases both took place in a landscape where the federal government is trying to rescind protections for transgender people in a variety of aspects of public life, including health care. Among other things, the Trump Administration has threatened to withdraw the HHS rule surrounding the enforcement and interpretation of Section 1557, which could leave transgender people vulnerable to discrimination in insurance and health care settings, a situation that could prove extremely dangerous for members of the transgender community.
While these lawsuits focused on insurance coverage for transgender services, it’s important to note that trans health care isn’t just about hormones and surgery for those who want to pursue medical transition. It also includes all the healthcare needs that anyone with a body has, from abortion to setting broken legs to getting vaccines. Enshrining a right to discriminate in health care settings puts trans bodies at extreme risk, and by extension, it’s also bad for public health.
If the federal government rescinds guidance that protects trans people, this issue may fall to the states. If you don’t know whether and how your state offers antidiscrimination protections to trans people, now is a good time to find out. Can people be fired or expelled from housing because they’re trans in your state? Does your state have antidiscrimination clauses in place to protect trans people in health care, school, and other settings? If not, consider contacting your state lawmakers to ask them to take action on this issue.