Health & Human Services

Section 1557 of the Affordable Care Act is the civil rights provision. Among other things, it prohibits discrimination on the basis of sex (which has increasingly been legally defined by the Federal government to include gender identity) in healthcare.

Section 1557 also gives the US Department of Health and Human Services’ (HHS) Office for Civil Rights the authority and obligation to investigate potential violations of the law and enforce this civil rights guarantee.

In May 2015 HHS issued guidance clarifying that under the Affordable Care Act, all insurers must cover sex-specific preventive care, such as mammograms and pap smears, for transgender people, and that that care must be provided without regard to “sex assigned at birth, gender identity, or recorded sex” (link).

However, HHS has yet to issue guidance mandating explicit inclusion of medically necessary transition-related healthcare.

This means that currently, transition-related surgical procedures and prescribed medications for hormone therapy may continue to be subject to discriminatory exclusions from coverage for a majority of transgender people in the United States.

FAQ

What can I do to RIGHT NOW about transgender exclusions in health insurance?

File a Civil Rights Complaint online with US Department Health & Human Services about exclusions in a health plan, or about insufficient coverage for transgender related healthcare in an inclusive plan. http://www.hhs.gov/ocr/civilrights/complaints/

What happens when I file a Civil Rights Complaint? And will my identity be released?

Please refer to this FAQ from US Department Health & Human Services on filing a Civil Rights Complaint for details.

In short, on request, the US Department of Justice will keep any information they receive confidential, and though they encourage complainants to sign and submit an Identity Release Statement (IRS) along with their complaints, it is not required.

In Office for Civil Rights (OCR) investigations, the name of the complainant usually is kept confidential unless it’s disclosure is necessary to the case. If OCR determines that release of your identity is required for the processing of the case, you will be asked to sign a release. If you choose not to provide a release, the investigation may be impeded or stopped. However filing the complaint is not necessarily about getting it investigated: it’s about giving the US Department of Health & Human Services as many voices as possible about transgender healthcare needs.

Do I need to be transgender, or the parent or partner of a transgender person, to file a complaint about this?

Anyone can file a complaint. All you need to be able to do is express concern that discrimination on the basis of sex (which legally includes “gender identity”, according to the Federal government) is occurring because of these exclusions.

Health providers can submit complaints on the behalf of their clients, and are encouraged to do so given their firsthand professional experience with the impacts these exclusions can have on people’s health.

The Federal government recognizes “gender identity” under the legal definition of sex?

Yes. Federal courts and the US Equal Employment Opportunity Commission (EEOC), which enforces federal employment discrimination laws, have concluded that discrimination on the basis of gender identity (ie because a person is transgender or gender non-conforming) constitutes illegal sex discrimination.

Accordingly, the US Department of Health and Human Services Departmental Appeals Board has mandated that Medicare may not categorically exclude coverage for transition-related healthcare, as doing so is “unreasonable and contrary to contemporary science and medical standards of care.”

The US Tax Court has also held that gender transition-related care is not cosmetic and is medically necessary, constituting as medical care under the Internal Revenue Code, and therefore costs related to that care are deductible from federal income taxes.

How can I tell if my health plan has transgender exclusions, and what do I look for?

Look under the enumerated medical exclusions on your health plan. Medical exclusions are limitations and exceptions to services offered under a health insurance plan.

These are examples of actual transgender exclusions in health insurance plans. Please note that many exclusions often utilize non-medical terminology.

The effects of these exclusions can vary depending on insurance carrier interpretations. For example, any of the first three examples could be narrowly interpreted to exclude only surgical aspects of transgender-related healthcare, but each have also been used to deny a much broader range of care, including annual exams and other services unrelated to medical transition:

“Services for, or leading to, sex transformation surgery.”

“Gender Transformation: treatment or surgery to change gender including any direct or indirect complications or aftereffects thereof.”

“Expenses for, or related to, sex change surgery or to any treatment of Gender Identity Disorders.”

“Transsexual surgery including medical or psychological counseling and hormonal therapy in preparation for, or subsequent to, any such surgery.”

 What if my plan is inclusive of transgender related healthcare? Should I still file a complaint?

You will need to read your plan closely, but it is very likely you can still file a complaint and important that you do so. Insufficient or incomplete coverage in a supposedly transgender inclusive health plan is just as much a problem as outright exclusions on transgender-related healthcare.

Even plans which include coverage for some transgender related healthcare often still contain limits or exclusions on procedures which are recognized as medically necessary for transgender people. This medical necessity is recognized by professional associations such as the American Medical Association and World Professional Association for Transgender Health, among many others.

Examples of commonly excluded procedures which are medically necessary for medical gender transition include (but are not limited to):

breast augmentation;
facial feminization surgery or facial bone reduction;
removal of redundant skin;
liposuction (as a component of female to male chest reconstruction);
nipple reconstruction;
mastopexy;
voice therapy;
construction of a clitoral hood;
hair removal (both for feminization and for necessary prep of a donor site to be used for urethral construction)

 

This FAQ has been adapted from elements of Andre Wilson’s presentation, “Eliminating Transgender Exclusions: What You Need to Know and Tools for Effective Advocacy,” Basic Rights Oregon’s “The Benefits of Equality: A Blueprint for Inclusive Health Care for Transgender Workers,” and US Department Health & Human Services’ “Civil Rights FAQs”