Obamacare rule mandates doctors, hospitals provide transgender treatment

The Obama administration has proposed a new rule that would ban “discrimination” against transgender patients at federally funded hospitals and doctors’ offices. Although it’s unclear exactly how the rule would be applied, it could require doctors and hospitals to provide gender transition treatments to their patients, including sex-change surgery.

The Department of Health & Human Services announced the draft rule, two years in the making, on Thursday. It would redefine a section in the healthcare law that prevents doctors from discriminating on the basis of race, color, national origin, disability, age, or sex to include gender identity.

The rule also would prohibit insurance companies that participate in the federal healthcare exchange from categorically denying coverage for transition treatments, such as hormonal therapy and surgery.

“Such across-the-board categorization is now recognized as outdated and not based on current standards of care,” the agency concluded.

In practice, the rule means hospitals would be required to provide patients access to restrooms and wards corresponding to the gender they identify with, regardless of their birth sex. The requirement would apply to any doctor or hospital that accepts reimbursement for Medicaid or Medicare patients.

“This proposed rule is an important step to strengthen protections for people who have often been subject to discrimination in our healthcare system,” said HHS Secretary Sylvia M. Burwell in a statement. The agency claims it has received more than 200 testimonials from transgender patients who claim to have faced discrimination in healthcare settings.

An official with the HHS Office for Civil Rights said that although the rule doesn’t automatically require insurers to cover every transition treatment, it requires them to offer coverage using “nondiscriminatory criteria.”

For example, the draft rule says if a health plan declined to pay for a hysterectomy as a treatment for gender dysphoria, the Office of Civil Rights would “scrutinize” whether the denial of coverage is “legitimate and not a pretext for discrimination.”

The National Center for Transgender Equality has lobbied for the change for several years. Executive Director Mara Keisling called the proposed rule “groundbreaking.”

But Michelle Cretella, president of the American College of Pediatricians, said the rule was a political move and “bad news” for children.

“There’s no scientific evidence anyone is born with gender confusion,” she said. “Just because someone believes something about themselves does not necessarily make it true.”

Many states already allow minors to pursue some medical services without parental consent, such as contraception, abortion, or drug and alcohol treatment. The nondiscrimination rule could discourage doctors from trying to sway teenage patients from pursuing a sex transition by hormonal treatments or surgery.

“Really we’re talking about leading them down the road of chemical castration and surgical mutilation,” Cretella said. “I think a lot of physicians may be accused of discrimination simply by saying, ‘I can’t recommend this treatment for you.’”

Paul McHugh, a psychiatry professor a Johns Hopkins Bloomberg School of Public Health, agreed the rule could make doctors more vulnerable to discrimination complaints.

“In some states in the union already I could lose my license if I responded to a parent who would like me to talk to their child who was confused in this way, and in the process persuaded the person to follow their course in nature,” he said.

Ten states and the District of Columbia already prohibit insurance companies from excluding gender transition-related care from their health policies.

Beside requiring access to gender-specific facilities for transgender patients, the federal rule also would prevent, for example, a “transgender man” (an individual born a woman but identifying as a man) from being denied coverage or access to a pelvic exam, according to the draft published in the Federal Register.

The proposed rule will be open to public comment through Nov. 6. HHS has asked for feedback whether the rule should include an exemption for “religious organizations.”

The National Center for Transgender Equality vowed to “advocate vigorously” against any religious exemption.

“Everybody wants to do justice,” McHugh said of advocates for transgender treatment. “But doing justice before you know the truth leads you into all kinds of difficulties. And this is one of them.”