Repeal of the Affordable Care Act: Possible Impact on Transgender and Gender Non-Conforming Population

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Victoria Mansfield
February 10, 2017

Current events have health policy officials on the edge as to how the Republican controlled houses will move forward with repealing the Affordable Care Act (ACA). In the early weeks of January 2017, Congress and the Senate took steps to lay a strong foundation through a budget resolution to repeal the ACA. President Trump signed an executive order to set the repeal of the ACA as a policy agenda. The coming repeal will impact many demographics of the population. Here we will focus on one population specifically: transgender and gender non-conforming (TGNC) individuals.

The ACA has provided two important things to the TGNC community. It has provided increased access to health care and made forward progress towards laying a legal groundwork for equitable access to care and treatment in the healthcare setting.  Of the 29.8 million people at risk of losing health insurance and access to health care, at a minimum estimate made the Williams Institute 1.4 million of those individuals are trans and gender non-conforming. It is important to recognize this number is an estimate as there is no accurate way of counting the TGNC population as there is not a consistent measure, nor is this measure used nationally on census surveys, or regional surveys.

The TGNC population uses healthcare for transition and non-transition related care; predominantly primary care; emergency and natal sex related preventative care; pap smears; and prostate exams. Additionally, as this population ages, elder care and chronic disease supportive care is as much as part of their life as any other patient population. However, unlike lesbian, gay and bisexual (LGB) populations, TGNC individuals are not able to hide or choose to disclose their gender identity. This means this population is vulnerable to discrimination at multiple points throughout the clinical experience.

The U.S. Department of Health and Human Services implemented the final rule Nondiscrimination in Health Programs and Activities in May 2016. It prohibits discrimination based on multiple minority demographics, including sex by any health system or health insurance company which receives federal funding, has a not-for profit tax exemption status or sells insurance plans in the marketplace.

The rule establishes equitable access to quality, affordable care for all LGBTQ+ Americans and other historically discriminated populations. This rule does not outline what constitutes discriminatory actions. In 2015, a legal suit was brought before the Minnesota U.S. District Court; Rumble v. Fairview Health. The legal decision handed down was the wording in Section 1557 regarding anti-discrimination based on sex protecting against discriminatory actions also included gender identity. However, counter to that, progress in Northern Texas the case Franciscan Alliance Inc. et al. v. Burwell et al filed by a coalition of five states and three religious medical groups filed against the Department of Health and Human Services indicating the rule goes against administrative procedure, and violates the religious rights of physicians.

The ACA takes great strides in protecting TGNC patients and provides a pathway for this population to receive safe equitable care, as many states do not have protections for TGNC patients outside of what the ACA outlines. Prior to the ACA, unless an insurance company on its own establishes equitable care, care related to the biological sex, if different from legal gender identity status, then they could deny coverage for that patient. As evidenced by the court cases currently going through the judicial system, a fight for equitable care is still ongoing.

However, a repeal of the ACA for this population means a national policy conversation will ensue. TGNC patients are subject to state level laws, which may not address this population’s health care rights, and as 2016 indicated, a surge of transphobic laws are in the making. Repealing this law changes the policy agenda. TGNC patients are not a priority in terms of their access and equitable care; which merely reinforces the historical pathologization of LGBTQ patients in the medical community.

National health priorities like Healthy People 2020 and legal developments under the Affordable Care Act Section 1557 highlight a continued need for standardized data tracking for trans and gender non-conforming population in terms of population numbers, disparities, health outcomes and other social determinants of health. There is a common saying in public policy that you don’t count until your counted. Until gender inclusive demographics are standardized and included on national NIH surveys, and other national data collecting surveys like the census, the ability to count this population and identify their health needs will be limited. In the meantime, the current and future healthcare needs of the TGNC population will continue to be inequitable.

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Author: Victoria Mansfield, Doctoral Student, Wilder School, Virginia Commonwealth University

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