On June 12, 2020, the Trump Administration finalized a rule that rolls back protections prohibiting discrimination against transgender people under the Affordable Care Act (ACA). The relevant section of the ACA prohibits discrimination in health care based on “sex,” which was interpreted by the Obama Administration to include gender identity. The Trump Administration’s new rule, simply put, attempts to authorize discrimination in health care against transgender people and is based on the notion that the term “sex” does not include gender identity.
Eliminating these protections threatens the health and safety of the transgender community, and to add insult to injury, the announcement came on the fourth anniversary of the Pulse nightclub massacre and during Pride Month.
Transgender people should have equal access to the same health insurance and care as every other insured American. This includes health care related to gender-affirming surgery, which for years has been recognized by the medical community as medically effective and necessary, as well as routine tests and treatment (such as pap smears or prostate cancer screenings) that have sometimes been denied to transgender individuals. Consumer protection is the Department of Financial Regulation’s core mission and it is our job as regulators to ensure everyone is treated fairly and is not subject to discrimination.
Fortunately, for Vermont’s transgender community, the Trump Administration’s rule will not be impactful here. Since 2007, Vermont law has prohibited health insurers from unfairly discriminating based on gender identity. In 2013, our Department further clarified that Vermont law requires health insurers to cover medically necessary gender-affirming care, including gender-affirming surgery.
Last year, our Department addressed concerns from young Vermonters who were denied health insurance coverage for gender-affirming care based solely on age. We clarified Vermont law to state unequivocally that insurers may not deny coverage of gender-affirming surgery due to the insured’s age, unless other clinical factors or circumstances support the decision.
Twenty-three other U.S. jurisdictions similarly prohibit health care discrimination based on gender identity, and for transgender people living in a state without similar protections, the U.S. Supreme Court provided a bright ray of hope a mere three days following the Trump Administration’s announcement.
On June 15, 2020, the Court issued Bostock v. Clayton County, a landmark ruling prohibiting workplace discrimination because of sexual orientation or gender identity. Specifically, the Court examined Title VII of the Civil Rights Act and interpreted the phrase “discriminate . . . because of . . . sex” to include discrimination based on sexual orientation and gender identity. This is directly contrary to the Trump Administration’s interpretation and is likely to effectively overrule its attempt to eliminate protections for transgender people under the ACA.
Separate statutes, same words, differing interpretations. In this instance, Vermont and the U.S. Supreme Court are safely on the right side of history.
Our Department remains committed to ensuring that Vermonters, especially those in marginalized and vulnerable communities, have access to medically necessary care. Please contact our consumer services staff at 802-DFR-HOTLINE if you ever encounter issues with obtaining care.
Michael S. Pieciak is the Commissioner of the Vermont Department of Financial Regulation which regulates Vermont’s financial service sector including health insurers.