Transgender Healthcare in America

By Jeremiah Ancheta

Transgender people have a long history of discrimination with the American health care system. How has this issue been addressed in more recent years? This post will survey the experiences of Transgender people with the American health care system, as well as the laws and policies that have been put in place throughout the years dealing with this issue.

Prior to 2016, no federal policies were in place that made discrimination against transgender people by virtue of being transgender impermissible in health care settings. As such, a number of transgender people have faced discrimination by health care providers on the basis of their gender identity. In 1997, a Philadelphia study revealed that 26% of respondents were denied health care. In 2006, a Virginia study found that 27% of respondents have experienced discrimination by a physician or were denied health care. Both studies stated that the respondents’ issues in health care were due to being transgender. According to the 2015 U.S. Transgender Survey, 33% of transgender people had reported at least one negative experience with a health care provider by virtue of being transgender. The survey reported that such negative experiences involve verbal harassment, physical or sexual assault, or even outright denial of health care services due to their gender identity.

So what has been done in response to decades of this problem? The laws and policies concerning transgender discrimination in health care facilities have centered around Section 1557 of the Affordable Care Act (ACA), a federal statute signed in 2010 that significantly overhauled the United State’s health care system. This particular section of the ACA states the prohibition of discrimination based on race, color, national origin, age, disability, and sex. Let’s take a look at how this federal policy has affected the permissibility of transgender discrimination in health care settings throughout the years.

Despite the prohibition of discrimination based on sex as stated in the ACA, transgender discrimination in health care environments was not federally recognized until 2016. A solution to this issue was provided by the Health and Human Services’ Office of Civil Rights in May of 2016, which ruled that the Affordable Care Act’s prohibition of discrimination on the basis of sex is to include discrimination based on gender identity.

However, on June 2020, Health and Human Services (HHS), under the Trump administration, overturned the 2016 ruling of protection from transgender discrimination. The was done by appealing to “the government’s interpretation of sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.” By reinterpreting sex in such a way, transgender discrimination by health care providers was no longer recognized by federal law. 

Ultimately, Health and Human Services (HHS) Secretary Xavier Becerra announced on May 2021 that the Biden Administration reversed the policies put in place by the Trump Administration, restoring the rights of transgender people to not be discriminated in health care settings on the basis of being transgender. In doing so, the Biden Administration cited the June 2020 Supreme Court decision in Bostock v. Clayton County, interpreting and enforcing “sex discrimination” from Section 1557 of the Affordable Care Act to reinclude discrimination based on gender identity.

With this recent decision by the Biden Administration, it is now prohibited by law for health care providers to discriminate against transgender people due to their gender identity. This is a necessary and important step to take in fighting for LGBTQ+ rights, and Cloud Dancers hopes that this policy will continue to stay in place.