Today, the Department of Health and Human Services (HHS) announced a final rule change that invites insurance companies and medical providers to deny patients care because of who they are.

This is not a surprise. Last May, a coalition of national LGBTQ organizations – Out & Equal Workplace Advocates, Out Leadership, The Human Rights Campaign, and The National Center for Transgender Equality – published an analysis regarding HHS’s clearly telegraphed intention to revise regulations to its non-discrimination policies. Such revisions present significant challenges to the transgender community. Click here to view this detailed overview. 

This rule comes in the midst of a global pandemic, as COVID-19 continues to disproportionately affect vulnerable populations like the LGBTQ community.

Brief Overview

The new rule threatens to undermine access to life-saving care for transgender people. Since 2012, section 1557 of the Affordable Care Act – which prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities – has been consistently interpreted to include discrimination on the basis of sex stereotyping and gender identity.

The rule changes expressly state that sex discrimination does not include gender identity or sex stereotyping/sexual orientation discrimination.  It also contains religious and/or conscience exemptions.

What it Means for Your Employees:

  • News like this can weigh heavily on your LGBTQ employees. Employees and/ or their family members may feel particularly at risk of harassment and discrimination.

  • Amid the pandemic, transgender and gender non-conforming individuals are already experiencing difficulties in accessing life-saving care, as many gender-affirming surgeries have been delayed or cancelled. Additional barriers to medical care can be devastating.

  • These rollbacks may present imminent worry and stress. Employees may be reasonably distracted by thoughts such as, “What does this mean for my child’s healthcare? What if I need to go to the emergency room?”

  • LGBTQ employees already face significant barriers to healthcare. As reported in the analysis, one-third of transgender individuals reported a negative healthcare experience, and pervasive discrimination prevents many transgender and gender nonconforming patients from seeking care.

What You Can Do:

  • If you are personally impacted by these rollbacks, you should also be able to find support in HR, Benefits, your Employee Resource Group or other internal offices devoted to employee well-being.

  • If you are an ally, now is a good time to lend support. A visible gesture of solidarity such as the trans equality flag or other emblem can go a long way.

  • If you manage staff – whether or not you think some are trans-identified –communicating your own and your company’s values of trans inclusion can be critical in moments like this.

What it Means for Your Company:

  • The voice of business remains vital in standing up for access to healthcare for transgender people. Your impact cannot be overstated. With two-thirds of the Fortune 500 companies already providing trans-inclusive healthcare coverage, major businesses like yours know that ensuring that trans employees can be healthy and thrive is both the right thing to do and part of ensuring a vibrant workforce. (This is also true for other population groups).

  • Ensure your transgender employees feel supported in your firm’s internal and external communications, recognizing the weight this can place on their mental and physical well-being. Communication like this is critical to ensure you are cultivating support and belonging during this time.