Core to Who I Am
July 14, 2020
The Trump administration recently rolled back some federal protections for transgender patients. We look at the fight to secure health care for trans Americans and explore the extent to which policies designed to expand access have delivered on their promise.
Listen to the full episode below, read the transcript or scroll down for more information.
The Basics: Health Care Access for Transgender People
Transgender people — people whose sex assigned at birth does not align with their gender identity — have long faced significant barriers to affording and accessing health care in the United States. This stems in part from employment discrimination, which leads to lower incomes and fewer opportunities for employer-sponsored insurance.
Trans patients also regularly report discrimination, difficulties finding knowledgable providers and struggling to afford care. These issues are often especially pronounced among trans communities of color and in the South.
Data collection on gender identity remains limited, leading to gaps in our knowledge on the transgender community. The most recent and comprehensive data comes from the 2015 U.S. Transgender Survey from the National Center for Transgender Equality.
The Evidence: Gender-Affirming Care
Gender-affirming care is any medical care that helps a person’s body match their gender identity. The most common examples of gender-affirming care are hormone replacement therapy and gender confirmation surgeries, such as mastectomies. Not all transgender people choose to take hormones or have surgeries.
Access to this care, especially surgery, has historically not been covered by employers, insurers and government programs because they considered it “cosmetic” and not medically necessary. Many plans included automatic denials of coverage for any transition-related care. Starting in 1989, Medicare banned coverage of what it called “transsexual surgery,” and most Medicaid programs and private insurers did the same.
The medical consensus now overwhelmingly supports gender-affirming care as medically necessary. This view is supported by more than two dozen major medical associations like the American Medical Association and American Psychological Association, as well as dozens of studies going back to the 1990s showing gender-affirming care to be beneficial and an effective treatment for gender dysphoria (the medical diagnosis for the distress a person feels based on a mismatch of their gender identity and their sex assigned at birth).
Nondiscrimination Policies Attempt to Expand Access
The last decade has seen a significant (yet incomplete and uneven) expansion in access to gender-affirming care thanks to changes in state and federal policies designed to prevent discrimination against transgender people in health care.
Federal Law: Section 1557
Section 1557 of the Affordable Care Act banned discrimination in health care on the basis of sex, the first federal law to do so.
Several courts have ruled that these protections apply to transgender people, and in 2016, the Department of Health and Human Services codified that interpretation and banned the use of automatic exclusions of coverage for transition-related care.
This does not change the text of Section 1557, which still includes the ban on sex discrimination, and experts don’t expect many insurers and providers to reinstate discriminatory polices. Several major insurers and industry organizations opposed the administration rollback, but it has still created confusion and is being challenged by at least two LGBTQ organizations.
The Supreme Court recently ruled that federal sex anti-discrimination protections apply to transgender workers. While the rule was specific to employment, many experts believe the same standard should apply to health care.
State Law: Insurance Bulletins
In 2012, California and Oregon became the first states to issue so-called insurance bulletins that prevent insurers in the state from denying transgender patients coverage for medically necessary procedures that are covered for cisgender patients (such as a mastectomy or hysterectomy).
These bulletins rely on existing state and federal laws (including Section 1557) to protect transgender patients from discrimination and offer state support and enforcement for people who receive unlawful denials. They do not apply to self-funded plans, although a growing number of large employers with such plans are offering trans-inclusive coverage.
As of July 2020, 24 states and the District of Columbia had issued such bulletins or passed laws to the same effect.
Medicare and Medicaid
In 2014, the Centers for Medicare and Medicaid Services ended Medicare’s ban on gender-affirming surgery.
State Medicaid programs are technically covered by Section 1557, but as of July 2020, at least 10 states still explicitly banned coverage in their Medicaid programs, and only around half explicitly offered coverage. In states without explicit coverage, transgender people may still be able to access care.
The Evidence: Impacts of Nondiscrimination Policies
The clearest impact of Section 1557 and state nondiscrimination polices has been the widespread removal of explicit transgender coverage bans by Medicare, private insurers, employers and Medicaid programs. More than 90% of silver plans on healthcare.gov exchanges do not have exclusions, and as of 2020, 65% of Fortune 500 companies offer trans-inclusive health coverage, nearly 20 times as many businesses as offered such coverage in 2010.
However, Noah Lewis, an attorney with the Transgender Legal Defense and Education Fund, said he still gets calls every day from people who have been denied coverage for transition-related care. But he says the number of complaints dropped noticeably after 2016, and addressing the complaints he still gets is much easier in places with state-level protections. Advocates also report that the policies have done little to address the lack of trans-competent providers, especially in rural and southern communities, as well as the disproportionate impacts on Black, Native and other trans communities of color.
The impact on individual health is more difficult to assess given the lack of data collected on gender identity and the relatively recent introduction of the policies. One study published in May 2020 found an association between lower suicidaility among transgender people and states with insurance bulletins.
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Select Research on Transgender Health:
Association of Nondiscrimination Policies With Mental Health Among Gender Minority Individuals (Alex McDowell, Julia Raifman, Ana Progovac and Sherri Rose, JAMA Psychiatry; 5/6/2020)
What does the scholarly research say about the effect of gender transition on transgender well-being? (Nathaniel Frank, Kim Weeden and Kellan Baker; Center for the Study of Inequality at Cornell; 2017)
U.S. Transgender Survey (National Center for Transgender Equality, 2015)
Select Research and Reports on Health Care Coverage Access for Transgender People
Corporate Equality Index 2020 (Human Rights Campaign)
2020 Marketplace Plan Compliance with Section 1557 (Out2Enroll)
Medicaid Coverage for Gender-Affirming Care (Christy Mallory and William Tentindo, Williams Institute, 10/2019)
The ACA’s LGBTQ Nondiscrimination Regulations Prove Crucial (Sharita Gruberg and Frank J. Bewkes, Center for American Progress, 3/7/2018)
The Future of Transgender Coverage (Kellan Baker, New England Journal of Medicine, 5/11/2017)
Beyond Categorical Exclusions: Access to Transgender Healthcare in State Medicaid Programs (Samuel Rosh, Columbia Journal of Law and Social Problems, 2017)
Kellan Baker, PhD, Centennial Scholar, Johns Hopkins Bloomberg School of Public Health
Melvin Whitehead, PhD, Assistant Professor of Student Affairs Administration, Binghamton University
Katie Keith, Adjunct Professor of Law, Georgetown Law
Taylor Brown, Staff Attorney, ACLU LGBT & HIV Project
Music composed by Ty Citerman, with additional music from Blue Dot Sessions
This episode was reported, produced and mixed by Ryan Levi.
Additional thanks to:
Noah Lewis, Sharita Gruberg, Sasha Buchert, Omar Gonzalez-Pagan, Camille Lewis, Laura Durso, Elle Lett, britt walsh, Jody Herman, Cara Cheevers, Phil Duran, Tobi Hill-Meyer, Beck Bailey, Christy Mallory, Hale Thompson, Ray MacFarlane, Rebecca Reynolds, Kieran Chase, Anand Kalra, Adrian Carver, Kasey Suffredini, Aryah Lester, Pete Bailey, Stephanie Skora, Micky B, Mason Dunn, Ivy Hill, Kelly Jenkins, Emily Colvin, Angela Dallarah, Rebecca Farmer, Logan Casey, Meredith Fenton, the Tradeoffs Advisory Board…
…and our stellar staff!