Transgender individuals often face considerable challenges in securing health care, including health care providers’ lack of knowledge and systemic gender identity discrimination. In many cases, transgender patients are kept from accessing medically necessary treatment, denied health insurance coverage, and suffer adverse psychological effects from being subject to a hostile environment when they do seek medical care. Certain recent laws provide protections to individuals facing discrimination in health insurance and health provider settings, and may afford you some relief if you have been mistreated in this context.
Your Rights Under the Affordable Care Act
The federal Affordable Care Act includes a provision known as the Patient’s Bill of Rights, which is intended to stop several unfair insurance practices, including the practice of refusing to cover individuals because of a pre-existing condition. Prior to that, transgender individuals faced the possibility of not being covered due to their gender identities being treated as a pre-existing condition.
As of 2014, insurance plans cannot refuse to cover you on the basis that they consider your gender identity a pre-existing condition. It may also be unlawful for a plan to deny you coverage for services in your plan because of the gender under which you’re enrolled or just because you’re transgender.
Similarly, after you are enrolled in health insurance, the insurer can’t cancel the policy due to mistakes or omissions, or for changes in your health including a gender transition. The only way the plan can cancel your coverage is due to intentional misrepresentation or fraud.
Under the Affordable Care Act, no health program or organization funded or administered by the federal government may discriminate against you because you are transgender or because the staff perceives you as not conforming to gender stereotypes. Places that receive federal funds and therefore may not discriminate against you include hospitals, physicians’ offices, drug rehabilitation programs, rape crisis centers, community health clinics, nursing homes, medical residency programs, veterans’ health centers, and health services in prisons and detention facilities.
These entities cannot discriminate against you for being transgender by refusing to treat you, subjecting you to medically unnecessary exams as a condition of treatment, harassing you, refusing to provide counseling or advocacy, isolating you, limiting your participation in recreational activities offered to others, or requiring you to participate in conversion therapy to change your gender identity.
As a transgender person, you are also protected under the Health Insurance Portability and Accountability Act (HIPAA). This law allows patients a right of access to their protected health information, but it also protects the privacy of individually identifiable health information, such as records relating to your transition or your transgender status. Your diagnosis, medical history and birth assigned sex may be considered protected health information that cannot be shared with any other person without your consent unless it is for treatment or payment purposes. When private medical information is shared as gossip, the sharing is considered a HIPAA violation.
Medicare and Medicaid regulations allow patients to choose their own visitors during hospital stays and to choose their own medical decision-makers. Hospital Accreditation Standards also require hospitals to maintain policies that prohibit gender identity discrimination. These regulations and policies mean that a hospital, doctor or clinic can’t discriminate against you or your family in visitation or in recognizing your right to designate a decision maker. Most states also prohibit sex discrimination in public accommodations, a term that usually includes hospitals.
If you are denied medically necessary care related to your transition, you can file a complaint with multiple different entities, including your health plan, state enforcement agencies, and the federal Department of Health and Human Services (HHS).
Under the Affordable Care Act, you can also sue for discrimination in federal court. It is a good idea to retain an attorney if you are considering filing a lawsuit, and important to be aware that litigation can quickly become prohibitively expensive.
In some cases, it may be a better option to file a complaint in writing about the discrimination (or a HIPAA violation) with the HHS Office for Civil Rights. You have only 180 days after you become aware that the discriminatory act has occurred to file the complaint. The complaint should name the health care program, activity and service provider involved, and factually describe any actions or omissions you found discriminatory on the basis of sex. The Office of Civil Rights can then investigate, and when appropriate, direct the discriminatory entity to correct its actions.