Human Rights Campaign Hails Proposed Changes to Reinstate Sexual Orientation, Gender Identity as Protected Characteristics for Health Insurance Plans Under Affordable Care Act

by Delphine Luneau

Proposal from Centers for Medicare and Medicaid Services Would Reinstate Obama-era Rules for Coverage Plans

The Human Rights Campaign (HRC) — the nation’s largest lesbian, gay, bisexual, transgender and queer (LGBTQ+) civil rights organization — praised the proposed rule changes published Wednesday by the Centers for Medicare and Medicaid Services (CMS) that would require health insurance plans offered through the Affordable Care Act to once again recognize sexual orientation and gender identity as protected characteristics.

The rules change would reverse moves taken under the Trump administration that removed sexual orientation and gender identity from the regulations by once again ensuring that exchanges, issuers, and agents and brokers are prohibited from discriminating based on sexual orientation and gender identity..

“This proposed rule change is yet another sign of the Biden administration stepping up to make tangible changes that will provide a real difference in the lives of LGBTQ+ people,” said Sarah Warbelow, Legal Director for the Human Rights Campaign. “Allowing health insurance plans and exchanges to discriminate on the basis of sexual orientation or gender identity runs contrary to the core principle of the Affordable Care Act – to provide comprehensive, low-cost or no-cost health care coverage for everyone. Given that LGBTQ+ people, especially Black and Brown LGBTQ+ people, are known to face widespread discrimination when it comes to health care access and outcomes, HRC is eager to see this proposed rule go into effect.”

Among its provisions, the proposed rule would also prohibit states from operating an exchange that discriminates based on sexual orientation and gender identity. It also labels discriminatory health care plans that exclude coverage of gender-affirming treatment for transgender people, and it has additional requirements for ensuring that marketing around health care plans issued through the Affordable Care Act are not discriminating on the basis of sexual orientation or gender identity.

According to the Williams Institute at the UCLA School of Law, about 15% of LGBTQ+ people in the U.S. are uninsured, compared to 12% of non-LGBTQ+ people. The LGBTQ+ population is also more likely to be unemployed (9% vs. 5%) or to have an annual salary below $24,000 (25% vs. 18%), both factors that can make it difficult to obtain health insurance. In 2021, HRC called attention to a report from the United States Centers for Disease Control and Prevention (CDC) that showed LGBTQ+ people were more susceptible to the negative impacts of the COVID-19 pandemic, noting that 37% of LGBTQ adult smokers smoke every day compared to 27% of non-LGBTQ people; 21% of LGBTQ adults have had asthma, compared to 14% of non-LGBTQ people; and one in five LGBTQ adults aged 50 and above have diabetes.

Fear of discrimination causes many LGBTQ+ people to avoid seeking health care, and when they do enter care, studies indicate that they are not consistently treated with the respect that all patients deserve. Studies by Lambda Legal show that 56% of LGB people and 70% of transgender and gender non-conforming people reported experiencing discrimination by health care providers — including refusal of care, harsh language and physical roughness because of their sexual orientation or gender identity. According to a report by the National Center for Transgender Equality, 23% of transgender respondents did not see a doctor when they needed to because of fear of being mistreated as a transgender person and a startling 55% of transgender respondents who sought coverage for transition-related surgery were denied.

According to HRC Foundation’s analysis of the 2018 Behavioral Risk Factor Surveillance System (BRFSS), the nation's premier system of health-related telephone surveys, 17% of LGBTQ+ adults do not have any kind of health insurance coverage, compared to 12% of non-LGBTQ adults. Furthermore, 23% of LGBTQ+ adults of color, 22% of transgender adults and 32% of transgender adults of color have no form of health coverage. This can lead to avoidance of medical care even when medically necessary and to severe economic hardship when medical care is ultimately accessed.

The proposed CMS rule is available for public comment now through Jan. 27.

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