Is gender reassignment a civil right?

Insurance companies administering large companies' health plans are concerned they will be less competitive if they have to comply with civil rights regulations in the Affordable Care Act.

Elaine Thompson/AP/File
Jocelyn Samuels speaks in Seattle, Feb. 4, 2014. Big companies are pushing back against proposed federal rules they say would require their medical plans to cover gender transition under the Affordable Care Act. Civil rights advocates representing transgender people say the regulation, currently being finalized by the Health and Human Services department, is a major step forward. Samuels, head of the HHS civil rights office, said in a statement that the agency is reviewing feedback on its proposal. 'This is another example of this administration’s commitment to giving every American access to the health care they deserve,' she said.

More and more employers are deciding to cover gender transition procedures under their health insurance programs. But should they have to?

Large companies concerned about what they call government overreach are pushing back against the nondiscrimination mandate of the Affordable Care Act, which some believe means that private insurers managing employers' health plans must cover medical care for sex confirmation surgery.

Most private plans do not receive federal assistance, and the mandate only applies to groups that do. But private insurance companies do receive federal assistance if they also sell plans under the Affordable Care Act or Medicare Advantage, in which case they must abide by federal civil rights protections, including for transgender people.

The Health and Human Services Department has said that an insurer must follow those rules "for all of its health plans, as well as when it acts as a third party administrator for an employer-sponsored group health plan."

Third-party insurance companies are worried that they'll be less competitive if they need to comply, potentially forcing higher costs and sometimes controversial procedures on the companies that hire them. That requirement "creates an uneven playing field" for insurers, America's Health Insurance Plans spokeswoman Clare Krusing told the Associated Press. 

But civil rights advocates believe the mandate is a step towards destigmatizing important care for thousands of people. It would be a "sea change for the insurance industry," Dru Levasseur, director of Lambda Legal's Transgender Rights Project, told AP.

"These exclusions are not in line with the medical community's understanding, and it's time for them to be removed," he said. 

In 2014, Medicare began covering medically-necessary reassignment surgeries. Patients suffering from gender dysphoria, a diagnosis for people experiencing severe distress because their physical sex does not match their gender identity, have argued that sex reassignment surgery, also called sex confirmation surgery or gender affirmation surgery, is necessary for their safety and well-being. 

Costs for the procedures vary, but can rise to tens of thousands of dollars. Employers voluntarily covered 418 such surgeries in 2015, compared to none in 2002. 

Jocelyn Samuels, director of HHS' Office for Civil Rights, told AP the nondiscrimination mandate is "another example of this administration's commitment to giving every American access to the health care they deserve."

But insurers are worried about the slippery slope, according to Gretchen Young, the health policy vice president for the ERISA Industry Committee, a trade association for insurers administering other employers' health plans. The Committee is also concerned that nondiscrimination rules would require insurers to provide materials in 15 languages for their subscribers.

HHS is currently trying to finalize the Affordable Care Act's civil rights regulations, six years after the Act became law.

This report includes material from the Associated Press.

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