The Legal Rights of Transgender Patients Under the Affordable Care Act

As of 2014, an estimated 1.4 million transgender adults were living in the United States.¹ According to the Human Rights Campaign, “transgender” is a term for individuals whose gender identity or expression is different from the sex they were assigned at birth. For example, a person who was born biologically female but now identifies as a man is considered a transgender man and a person who was born biologically male but currently identifies as a woman is considered a transgender woman.²

Although some transgender individuals choose to medically transition using hormones, reconstructive surgery, or both, others may choose not to pursue those options but still require pharmacy services. Transgender patients face many barriers in the health care system, one of which is the lack of clarity on their rights as patients. This article explains the legal rights of transgender patients under the Affordable Care Act (ACA).

Section 1557 is the civil rights portion of the ACA that prohibits discrimination based on race, color, national origin, sex, disability, and age by health care programs that receive federal funding, are administered by a federal agency, or were created by the ACA.³ Programs that receive federal funding include insurance companies, hospitals, and pharmacies that accept or administer Medicaid or Medicare. After speculation about whether the term “sex” in the original legislation applied to transgender patients, the Department of Health and Human Services (HHS) created a regulation, “Nondiscrimination in Health Programs and Activities,” that declares that discrimination based on sex includes gender identity and expression. This regulation applies to all previously stated entities except those administered by federal agencies other than the HHS, such as the Veteran’s Health Administration or the Federal Employee Health Benefits Program.⁴ Although this rule applies to every aspect of health care, it most affects pharmacy in terms of its application to insurance coverage and health care providers.

Under the nondiscrimination regulation, qualifying insurance companies cannot exclude coverage of medications related to transitioning, such as hormones. Refusing to cover gender-specific treatment, such as birth control for transgender patients, is also considered discrimination. For example, a transgender man may still require birth control if there is a possibility of pregnancy. Therefore, if an insurance company covers medications for nontransgender patients, it cannot refuse to cover that medication for transgender patients simply because they are transgender or the medication is being used for transitioning. As always, insurance companies retain the right to determine the medical necessity of treatment on a case-by-case basis, but the gender expression of the patient cannot be factored in to that decision.⁵

HHS’s regulation also affects the rights of transgender patients at pharmacies and in terms of care provided by pharmacists. Helping patients navigate the complex world of prescription insurance is a task many pharmacists are expected to undertake. The regulation prohibits refusal of service or discriminatory service of transgender patients in pharmacies that accept federal funds, such as Medicaid or Medicare. Transgender patients must be treated in a way that respects their gender expression, including the use of bathrooms and self-identified pronouns. In addition, medications that are dispensed to nontransgender patients may not be denied to transgender patients, such as hormones and birth control; however, pharmacies that do not offer services to either population are not required to begin offering them to meet the needs of transgender patients.⁵

Although transgender patients make up a small percentage of the American population, they have medical needs that must be addressed. Section 1557 of the ACA and its accompanying regulation guarantees their right to fair and equal health care relating to their transition and their general health. With the possibility of repeal or modification of the ACA, it is unclear how long transgender patients will benefit from the rights it grants them.

Nicole M. Kindelin, a native of Montgomery, Illinois, is a second-year PharmD student at the University of Kentucky College of Pharmacy. Joseph L. Fink III, BSPharm, JD, is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.

References

• Flores AR. How many adults are transgender in the United States? Williams Institute website. http://williamsinstitute.law.ucla.edu/wp-content/uploads/How-Many-Adults-Identify-as-Transgender-in-the-United-States.pdf. Published June 2016. Accessed December 26, 2016.
• Sexual orientation and gender identity definitions. Human Rights Campaign website. hrc.org/resources/sexual-orientation-and-gender-identity-terminology-and-definitio3ns. Accessed December 30, 2016.
• Patient Protection and Affordable Care Act, 42 USC §18001 (2010).
• Nondiscrimination in Health Programs and Activities Proposed Rule: Section 1557 of the Affordable Care Act. US Department of Health and Human Services website. hhs.gov/civil-rights/for-individuals/section-1557/nondiscrimination-health-programs-and-activities-proposed-rule/index.html. Accessed December 30, 2016.
• Final HHS regulations on healthcare discrimination: frequently asked questions. National Center for Transgender Equality website. transequality.org/sites/default/files/HHS-1557-FAQ.pdf. Accessed December 26, 2016.