HHS rule reverses nondiscrimination protections in health care for more than 1.5 million transgender people

The U.S. Department of Health and Human Services (HHS) today announced a final rule that reverses federal protections prohibiting discrimination based on gender identity in health care.

The regulation could create added barriers to accessing health care for an estimated 1.4 million adults and 150,000 youth who identify as transgender in the U.S., including the significant number who have underlying health conditions that put them at particular risk of serious illness related to COVID-19.

Recent research from the Williams Institute found that an estimated 320,000 transgender adults have underlying health conditions that could increase their risk for COVID-19-related illness. This includes 208,500 who have asthma, 81,100 who have diabetes, 72,700 who have heart disease, and 74,800 who have HIV. In addition, an estimated 217,000 transgender people are age 65 and older.

“Our research finds that transgender people experience health disparities compared to cisgender people and often lack access to health care,” said Jody L. Herman, Scholar of Public Policy at the Williams Institute. “They also face persistent discrimination in health care settings, which is a concern for many transgender adults.”

  • According to U.S. Transgender Population Health Survey (TransPop), 57% of transgender adults had substantial concerns about receiving health care as a transgender person, including worries of being judged and getting diagnosed negatively because of their gender identity.
  • Transgender people who had substantial concerns about receiving inclusive and accepting health care were less likely to have a personal doctor or health care provider.
  • Those who had substantial concerns about receiving inclusive and accepting healthcare reported more days of poor mental and physical health in the past month.
  • According to the 2015 U.S. Transgender Survey (USTS), conducted by the National Center for Transgender Equality, 23% of respondents did not seek needed medical care due to fear of being disrespected or mistreated as a transgender person.
  • One-third of USTS respondents reported a negative experience with a health care provider, such as being refused gender-affirming care, being asked invasive questions, and providers using harsh or abusive language when treating them

No federal statute expressly protects transgender people from discrimination in health care. The new rule removes from HHS regulations protections that were guaranteed under the agency’s former interpretation of Section 1557 of the Affordable Care Act. Section 1557 bans sex discrimination in federally funded health care. The original regulation stated that the law’s ban on sex discrimination applies to discrimination based on sex stereotyping and gender identity, consistent with numerous court decisions. The Supreme Court is poised to address the breadth of sex discrimination protections in employment discrimination laws during its current term, which could affect the validity of the new HHS interpretation.

June 12, 2020

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