The rights of transgendered people have received a lot of media coverage in recent months. Despite a growing social acceptance, many transgendered people report unfair treatment by health care providers. This mistreatment includes denials of coverage, as well as harassment or physical assault.

On Friday, May 13, the Department of Health and Human Services (HHS) issued new rules that apply to the care of transgendered patients. The new rules make clear the Obama Administration’s position that the antidiscrimination provisions of the Affordable Care Act (ACA) prohibit discrimination based on a person’s gender identity.

Section 1557 of the ACA applies to programs funded or administered by HHS, and to Health Insurance Marketplaces and policies offered through those Marketplaces. The law prohibits those programs or policies from discriminating against a person based on their race, color, national origin, sex, age, or disability. The final rule announced on May 13 prohibits the denial of health care or health coverage based on an individual’s sex. The prohibition includes discrimination based on pregnancy, gender identity, and sex stereotyping. The final rule also requires health programs and activities covered by the ACA to treat individuals consistent with their gender identity.

The new rule does not require insurers to change the benefits that they provide. For example, insurers who do not currently provide coverage for gender reassignment surgery will not be required to start offering it. However, if an insurer covers hormone therapy or reconstructive surgery, that coverage cannot be denied to a transgendered person.

Note that the new rule does not include an exemption for insurers or health care providers based on religion. HHS has stated that the existing religious exemptions in the ACA will continue to apply.

For further information, we invite you to download the following Legal Insights White Paper:

The Affordable Care Act: Mandated Benefits Compliance Standards