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HHS Changes Rules Regarding Transgender Discrimination

Section 1557 of the Affordable Care Act prohibits most health plans from discriminating against a participant on the basis of race, color, national origin, sex, age, or disability. In 2016 under the Obama administration, the Department of Health and Human Services issued regulations broadly interpreting discrimination on the basis of sex to include discrimination on the basis of gender identity, gender expression, and transgender status. Under this rule, it would be per se discrimination for a health plan to outright exclude or limit coverage for all services related to gender transition. In December 2016, however, a federal district court issued an injunction blocking enforcement of this provision nationwide and HHS has not enforced these provisions since October 2019.

In June of this year, HHS under the Trump administration issued new regulation regarding discrimination on the basis of sex. These new regulation reversed the former regulations broad definition of sex, instead only prohibiting discrimination on the basis of the genetic construct of male and female. Under the new rules, while there is no reason a health plan cannot cover gender transition services, it is no longer a requirement according to HHS.

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