The Trump administration announced a proposal Friday that would essentially allow health-care providers to discriminate based on gender identity. For the 1.4 million transgender people in the United States, it’s the cruelest move yet from a government that’s been openly hostile to us.
The proposed rule, which must go through a public comment period before being finalized at a later date, would replace an Obama-era rule that included gender identity and sexual orientation under the definition of sex discrimination, as many courts have ruled. In remarks to the media Friday, Roger Severino, the director of the Office of Civil Rights at the Department of Health and Human Services, claimed the new rule would ensure that Section 1557 of the Affordable Care Act, which bans sex discrimination in the health-care industry, would define sex “according to the plain meaning of the term” as passed by Congress in 1972. “The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives,” said Severino. “The proposed rule would accomplish both goals.”
This administration has attacked the trans community constantly in President Trump’s two years in office: the military ban, rolling back trans student protections, the trans erasure memo, new trans prison regulations, even last week’s Housing and Urban Development rule regarding trans homeless people. But this proposal is the most sweeping and devastating of them all. It also essentially completes the Trump administration’s attempt to undo legal gains we had made: As ThinkProgress reported Friday, nearly all of the political advances trans people made under President Barack Obama are now gone. Suddenly, it’s 2008 again for trans people here.
For me, as a transgender person, this administration’s constant targeting of us is terrifying. It seems that there’s little they won’t do to making transitioning and living a dignified life as a transgender person impossible. Trump and his administration are clearly prioritizing the desires of religious conservatives who would like to see my existence rubbed out of society, and they’ve come this far so quickly with barely a blip of resistance. Friday’s attack on our health care is the most devastating yet.
Social conservatives have long opposed the Obama-era ACA rule, claiming it forced doctors to perform procedures, such as sexual reassignment surgery and hormone replacement therapy, which could run counter to their religious beliefs. But most transition-related surgeries are complicated and performed by doctors and surgeons who specialize in the specific procedures. According to a 2018 Center for American Progress report, the vast majority of gender identity claims made under Section 1557 were made because trans people were denied general care simply for being trans, not because they were denied a trans-related medical procedure by a doctor whose faith didn’t allow them to provide it. In other words, trans people simply aren’t walking into their local Catholic hospital and demanding reassignment surgery in the emergency room. Thanks to the proposed rule announced last week, however, advocates are now rightly worried that trans people will once again be arbitrarily declined emergency or cancer treatment, as had happened before the Obama-era rule went into effect. But perhaps the biggest threat the proposed rule presents to the community at large is with insurance coverage for transition-related care.
Blanket exclusions for transition care were incredibly common before the Obama administration took several key steps in ending the practice. Gender-affirming procedures only used to be performed by a handful of surgeons whose patients were forced to pay out of pocket, with bills sometimes running into the hundreds of thousands of dollars. Only the wealthiest trans people could afford to get surgery, sometimes relying on traveling to foreign surgeons with lower prices, and U.S. hospitals had little incentive to offer it in the first place.
This didn’t stop trans people from transitioning, of course, because hormone replacement therapy is typically the first step in a gender transition and is significantly more affordable. In 2014, Time magazine declared the “Transgender Tipping Point,” and the following year, Caitlyn Jenner transitioned in the national spotlight. Along with this new visibility and seemingly growing acceptance, more and more trans people came out and started transitioning, including me. The moment resulted in huge pent-up demand for gender-affirming surgeries that remained inaccessible for most trans people. Thanks in part to the Obama-era Section 1557 rule, which banned blanket exclusions of transition care for any insurer who took federal money, coverage of the procedures expanded quickly, and hospitals rushed to offer them to meet the demand. While data on gender-affirming care has only begun to be collected fairly recently, according to a report by the American Society of Plastic Surgeons, over 3,200 trans-affirming surgeries were performed in 2016, an increase of nearly 20 percent from the year before. So many of the gains the trans community has seen over the past five years have roots in this sudden increase in access to transition-related care, which makes this particular Trump attack particularly vicious.
According to data from Out2Enroll, an organization advocating for insurance coverage for lesbian, gay, bisexual, transgender and queer people, in 2017, the first year of the Obama-era rule, 95.1 percent of insurance companies had removed language excluding transition-related care. The percentage of insurance companies specifically including transition-related care in their coverage plans rose from 18.5 percent in 2017 to 41 percent in 2019.
That increase in coverage in part from pressure from large employers who value diverse and inclusive workplaces and partly from regulations under Section 1557. “In my opinion, this was one of the strongest LGBT-specific protections that the Obama administration had put in place.” Katie Keith, a steering committee member of Out2Enroll, told me. “What I would not want to see is insurance companies using [the new rule] as a reason to put exclusions back in. Even if they don’t put exclusions back in, you could further see previewing around actual coverage determinations, so insurance companies feel more emboldened to exclude care that was medically necessary if they feel they get the sense that no one is looking anymore.” It remains to be seen whether demand from large employers for transition-related health insurance coverage will preserve coverage for transition-related care. Even if coverage remains inclusive for trans employees at large companies, insurance companies are free to offer reduced coverage to those on the individual ACA market, which could be particularly devastating for a demographic that struggles with rampant underemployment and unemployment. It’s no coincidence that the administration has also targeted trans employment protections, with a case scheduled to be heard later this year by the Supreme Court that will have massive ramifications for a generation to come. There do remain a few reasons for trans people to hope at the state and local levels. Mara Keisling, executive director of the National Center for Transgender Equality, pointed out on a media call Friday that nearly two dozen states have insurance commissions who have said discrimination on the basis of gender identity in coverage is not permitted, and many offer coverage of transition-related care through Medicaid.
“What [the proposed rule] does from a very practical point of view is it empowers bad actors to be bad actors,” Keisling said. “Most health-care providers are decent people who want to do the right thing. They will hopefully continue to do the right thing. Insurance is a lot more complex because it does have to do with all of the large insurance who are now insisting that their employees get offered coverage. … We don’t know exactly [what will happen], but it is something we’re concerned about.”