In October 2018, the ACLU reported that two Wisconsin state employees were awarded $780 thousand in damages by a jury because they were denied gender-affirming health care coverage under the state’s health care plan, the first time a jury has awarded damages based on a denial of care. One month prior, a judge ruled that their denial of care was in violation of the Constitution and federal anti-discrimination laws.
Access to health care remains a critical issue for any and all communities but it is particularly salient for transgender people. The 2015 US Transgender Survey revealed unsettling trends in health care: 23 percent of respondents did not see a doctor for fear of being mistreated and 33 percent of respondents who went to a health care provider had one or more negative experiences related to being transgender.
While the Trump administration has been chipping away at LGBTQIA rights, it is important to know what one’s rights are with respect to health care anti-discrimination. If you feel your rights were violated, contact an attorney today.
Why is access to gender-affirming healthcare important?
“Trans People face disproportionate amounts of violence and harassment in all area of life, but specifically in accessing health care," says Dale Melchert, staff attorney at the Transgender Law Center.
One common pervasive misconception by health insurers and other members of society is that gender-affirming surgeries and treatments are cosmetic or elective. “A lot of trans people rely on medicine as an intervention to affirm who we know who they already are," Melchert says. "Health care is lifesaving.” Melchert explains that major medical associations have also endorsed transition-related care as medically necessary. For instance, the American Medical Association wrote in 2014, “the only effective treatment of [gender dysphoria] is medical care to support the person’s ability to live fully consistent with one’s gender identity.”
Lark Mulligan, collective member and project attorney at the Transformative Justice Law Project of Illinois, agrees that gender-affirming care addresses profound needs. “For those transgender people who want transition-related health care, it is essential for our well-being: for our physical, mental, emotional and spiritual well-being. Just like health care is a right for all people, transition-related health care should be a fundamental right for people want access to that.”
What are transgender and gender non-conforming people’s rights to health care?
Under the Affordable Care Act, the law “prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities.” Further, the law states that sex-based discrimination "includes, but is not limited to, discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping, and gender identity.”
The Transgender Law Center writes that this rule applies to “(1) health settings that receive federal financial assistance, (2) every health program administered by the Department of Health and Human Services, and (3) every health program administered by Title I of the Affordable Care Act.” This includes “most hospitals, clinics, pharmacies, labs, and HIV testing sites nationwide" as well as “most types of health insurance and coverage, including Medicaid, Medicare, AIDS Drug Assistance Programs (ADAP) and individual insurance plans purchased through a state or federal health exchange."
Insurance companies are therefore not permitted to make blanket exclusions to types of care, notably transition-related care, or deny care based on gender identity. For that reason, an insurance company is not allowed to deny a trans man coverage for his pap smear.
While there have been recent discussions about repealing ACA and these protections, Melchert points out that ACA is still the law of the land, even if there are states that have not followed the letter of the law. Some states and jail or prison systems, as in the Wisconsin case noted above, have permitted discriminatory health care policies. Other states have strong anti-discrimination laws to protect transgender and gender non-conforming individuals. Melchert adds that the recent statements by the administration may encourage hospitals, insurance companies, and other health care providers to break the law.
What should I do if I am denied care by my insurance?
The 2015 US Transgender Survey found that over half of all people who sought coverage for transition-related surgery in 2015 were denied, as were 25 percent of those who sought coverage for hormones. If your insurance company denies your claim, despite being compelled by the ACA, you are not yet out of options. Belkys Garcia, staff attorney at the Legal Aid Society in New York, has one piece of advice: Appeal the claim. "You shouldn’t assume that’s the end of the road," Garcia says. "You may have to be in it for the long fight. Many people don’t get approved on the first request.” When care is denied, you may want to consult an attorney or try to appeal the process yourself.
What are my rights if I am denied care by a health service provider?
If a doctor, hospital, or another health service provider denies care or discriminates against you for your gender identity or expression, file a complaint with a human rights commission near your state. Notable commissions include the San Francisco Human Rights Commission; the Illinois Human Rights Commission; the Seattle Human Rights Commission; the New York City Commission on Human Rights; and the Human Rights Commission of Salt Lake City.
How can I protect myself?
Mulligan advises three steps for people to protect themselves. First, and most important, is to know your rights. Second, document everything. “If you are experiencing mistreatment or violence, take photographs, write notes, have journal entries with dates, times, locations, names of whatever occurred," Mulligan says. This will be essential later if want to pursue legal relief.
Finally, seek legal counsel as soon as you are able. The statute of limitations on discrimination cases will depend on your state and circumstances, but civil rights campaigns must generally be filed within 180 days of the offense.
Discrimination in any area of your life makes it more difficult, and can even affect your mental health. When it comes to your physical wellbeing, doctors and insurance providers should offer appropriate and dignified care. For anything less, contact an attorney or community advocacy organization to fight for your rights.