Health insurance plans offered through the Affordable Care Act that exclude coverage of gender-affirming treatment for transgender people are discriminatory, the Department of Health and Human Services said in an annual policy report scheduled for release this week. 

That argument is included in the agency’s proposal to restore Obama-era nondiscrimination protections for LGBTQ+ people accessing ACA health care plans for 2023. In recognizing gender-affirming care like hormone therapy, the proposal goes a step beyond previous protections under the Obama administration. 

“I’m pleasantly surprised that they went there and made these protections even clearer,” said Katie Keith, a health law expert at Georgetown University and founder of Out2Enroll, which reviews ACA plans for LGBTQ+ inclusion and advocates for LGBTQ+ people to sign up for plans. 

The proposed protections — which would reinstate sexual orientation and gender identity as protected antidiscrimination categories — come amid the Biden administration’s pledge to restore protections for LGBTQ+ Americans that were revoked under former President Donald Trump. 

“I think this is an important step forward, an important piece of the puzzle,” said Harper Jean Tobin, a leader in transgender policymaking who runs a consulting firm working with LGBTQ+ organizations. “They’re fixing a hole that was ripped in these regulations by the Trump administration.” 

LGBTQ+ Americans’ access to health care coverage has improved over the years, but that progress often hasn’t reached people with the most serious health care needs, Tobin said. Although fewer health care plans set blanket exclusions against covering trans people now than in previous years, some plans still discriminate in how they apply the terms of their plans, and some LGBTQ+ families are mistreated when enrolling or seeking benefits, she said. 

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Most 2022 plans reviewed by Out2Enroll did not use trans-specific exclusions for gender-affirming care, but 6 percent of insurers offering silver plans, the most popular category in the ACA marketplace with moderate costs compared to higher-tier plans, did explicitly exclude coverage for trans people — an increase from previous years. 

This matters because of another systemic inequity: The deep economic disparities experienced by LGBTQ+ Americans — especially transgender people, who make less than cisgender people in the United States — mean they are less likely to have health insurance through an employer plan. 

These new protections — proposed by the Centers for Medicare and Medicaid Services (CMS), part of HHS — are made under a separate authority than the primary nondiscrimination clause outlined under the ACA: Section 1557. The Trump administration revised the far-reaching civil rights protection clause to exclude “gender identity” as a protected category. Although nondiscrimination protections under CMS were also affected by the Trump administration’s changes, these new rules are more narrowly defined and, health experts and advocates hope, could preempt discrimination against LGBTQ+ people. 

CMS’s proposal to apply nondiscrimination protections to gender-affirming care could help prevent transgender patients, specifically, from experiencing discrimination in the first place, policy experts told The 19th, and help circumvent the usual loop of discrimination going unnoticed until it’s experienced and then reported or litigated. States would be the primary enforcers for these protections, CMS noted. 

“Nipping it at the bud is certainly a cleaner, more straightforward path to equity,” said Lindsey Dawson, associate director at the Kaiser Family Foundation. 

The proposed protections, which will be published Wednesday and enter a 30-day comment period before being weighed by agency officials, are focused on coverage plans provided within the ACA marketplace. Section 1557, a broader rule, applies to any health care insurer or provider that gets federal funding. Section 1557 is also mired in a slew of ongoing litigation and has been since it was finalized in 2016.

The Biden administration said in a court filing last November that the HHS expects to issue its revised Section 1557 Rule in April. 

With the CMS proposal, although the agency does not explicitly say so, “it seems clear that they’re looking to find authority outside of 1557,” Dawson said. HHS declined to comment on the record.

Enforcement of nondiscrimination protections for transgender people under Section 1557 is also still spotty, per Out2Enroll’s latest analysis of silver marketplace plans, or the most commonly chosen category of ACA plan. In states like Texas, Oklahoma, Missouri and Wyoming — where federal officials enforce Section 1557 — more oversight for enforcement is needed, the organization argues.