This article, with the exception of the quote at the end from the Health Affairs Blog, is an abbreviated version of an e-mail sent on September 14, 2015 by Kellan E. Baker , MPH, MA, Senior Fellow of the LGBT Research and Communications Project of the Center for American Progress to the LGBTQ State Exchange List-serve.

A new rule proposed by the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services will implement Section 1557 of the Affordable Care Act. This section includes non-discrimination protections that prohibit any health program or facility that receives federal funds, including insurance companies in the state and federal marketplace, from discriminating on the basis of race, color, national origin, age, disability, or sex. The deadline for comments on the proposed rule is November 9, 2015. In this article we will focus primarily on the provisions related to gender identity and access to services for gender non-conforming people.  In our next newsletter we will address the impact of this proposed rule on race, color, national origin, age, disability and sex (other than gender identity issues).

In the proposed rule, OCR confirmed that the sex nondiscrimination protections in Section 1557 prohibit discrimination on the basis of gender identity and sex stereotyping. This rule applies to many “covered entities,” including private health insurers, state Medicaid programs, health facilities that accept federal funding (such as hospitals or clinics that accept Medicare or Medicaid patients), and the Health Insurance Marketplaces. It also applies all of these protections to programs run by HHS itself. 

The proposed rule does the following: 

• Prohibits many private health insurance plans as well as state Medicaid programs from categorically excluding coverage for gender transition.  This new rule—once finalized—will require insurers to provide access to health care services that transgender people need, whether related to gender transition or not. The rule applies to any health insurance carrier that sells plans through a Health Insurance Marketplace, regardless of whether the plan in question was bought on the Marketplace, including the coverage they sell to or administer for small and large employers.