The Obama administration had proposed adding gender identity to the definition of discrimination based on sex, but the change was blocked in federal court.
The federal Department of Health and Human Services says the 204-page document released Friday is "in keeping" with current civil rights statutes and regulations that prohibit discrimination.
“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” said Roger Severino, director of the HHS Office for Civil Rights.
Seventeen states, including Massachusetts, have passed laws that protect transgender residents from discrimination in health care facilities and other settings. To find out what the proposed federal change would mean for transgender patients in Massachusetts, we spoke with Sean Cahill, director of health policy research at the Fenway Institute in Boston. Just over 10% of Fenway patients are transgender or gender nonconforming.
Our conversation is edited, for clarity and brevity.
What's the quick answer to the question, what does this mean for transgender patients in Massachusetts?
We have a statewide nondiscrimination law still in effect here which prohibits discrimination on the basis of gender identity in public accommodations, including health centers and hospitals. (So transgender people in Massachusetts have protections against discrimination in health care.)
However, the federal regulation that the Trump administration is proposing to repeal regulates health care at the national level, so if people travel out of state, they could be vulnerable to discrimination in health care.
So the state's Public Accommodation Law protects the right of a transgender patient to enter a facility and be treated. What about insurance coverage for transgender health care? There is a separate state rule that requires insurance coverage for transgender health services. Would the federal proposal affect coverage?
The regulations that the state Division of Insurance and Governor Patrick put in place in 2014 protect transgender people against discrimination by insurance companies. That guarantees coverage of gender affirming care and would still be in effect.
Editor's note: State law governs individual and small- to medium-size employer-sponsored health insurance plans. Large employer plans, which are typically self-insured, are governed by federal law. HHS says the proposed rule would not apply to self-insured plans.
What about Massachusetts transgender residents covered by the two federally funded health care programs, Medicare and Medicaid?
Since there's a state law and 50% of Medicaid funding is from the state, then I'd assume that Medicaid can't discriminate against transgender people because that would violate state law.
With Medicare, we're still analyzing the rule, but the Centers for Medicare and Medicaid Services have been doing a lot of good work to improve care for LGBTQ patients, and I'm not convinced that this rule would undermine that work.
Does it mean that MassHealth could no longer cover transgender services?
No, I don't think it means that at all.
What about the Health Connector, how would the proposed rule apply to policies sold through the health insurance exchange?
My read of the rule is that it doesn't say to Massachusetts "you can't provide gender affirming care to transgender patients." It just takes away the current nondiscrimination language.
Is there any other way that transgender patients in Massachusetts might be affected?
There's been a wide array of attacks on transgender people by this administration and I think that affects the health and well being of transgender residents in Massachusetts. It makes them feel unsafe. It makes them feel that they are less than equal.