Protecting the Affordable Care Act this LGBTQ Pride Season
Another year means another LGBTQ Pride season, and another reason to celebrate significant gains in LGBTQ health thanks to the Affordable Care Act (ACA). What are we celebrating in 2017?
For one, more LGBTQ people have health insurance than ever before. Thanks to the ACA, the uninsured rate for low- and middle-income LGBTQ people is at a record low, dropping from a high of 34 percent in 2013 to 22 percent in 2017. Overall, the uninsured rate for this group of LGBTQ people fell by 35 percent since the ACA’s major reforms went into effect. Although we still have a lot of work to do to address LGBTQ health disparities—like higher rates of HIV and tobacco use—access to quality, affordable health insurance has helped our communities begin to close these gaps.
In addition, 2017 was the best year ever for transgender people to enroll in health insurance. Thanks to a new ACA rule that went into effect in 2017, most private insurers can no longer include plan language that discriminates against transgender people (known as transgender exclusions) or otherwise discriminate against LGBTQ people in health coverage or care. This means that new insurance plans, while still far from perfect, are better than ever: our analysis in December 2016 found that the vast majority of silver marketplace plans in 16 states had removed transgender exclusions. Even better, nearly 20 percent of plans had language indicating that all or some medically necessary transition-related care would be covered. Although there is still more work ahead of us to improve health care for transgender people, this—plus the fact that 14 states and DC now affirmatively cover transition-related care in their Medicaid programs—shows significant progress.
Despite these gains, LGBTQ health is under attack. Instead of building on the progress the ACA made, members of Congress and the Trump administration want to take health care from millions, including an estimated 1 million LGBTQ Americans, and gut essential nondiscrimination protections. The American Health Care Act—passed by the House and currently under consideration in the Senate—would strip insurance from 23 million Americans, hike premiums by 20 percent next year, and cut $834 billion from Medicaid, all while eliminating protections for people with preexisting conditions. These are just some of the changes that Congress is considering to give tax breaks to the wealthy while cutting billions of dollars from programs that low- and middle-income LGBTQ families rely on.
At the same time, the Trump administration has threatened to roll back parts of Section 1557 of the ACA, which bans sex discrimination in health care programs that receive federal funding and is critical to ensuring that LGBTQ people are treated respectfully when accessing coverage and care. Because Section 1557 is not subject to the budget reconciliation process, Republicans in Congress cannot repeal this part of the ACA, so Section 1557 is likely to remain in place at least for the near future.
However, parts of the Section 1557 regulation—a rule issued by the Obama administration that was finalized in May 2016—have been challenged in federal court. The plaintiffs in the litigation, Franciscan Alliance v. Price, challenged the Obama administration’s interpretation that the ACA’s ban on sex discrimination prohibits discrimination based on sex stereotyping, including gender identity. Judge Reed O’Connor—the same judge who blocked the Obama administration’s efforts to protect transgender students—agreed with the plaintiffs and issued a nationwide preliminary injunction on December 31, 2016.
Although a setback, this injunction is temporary and applies only to the Office for Civil Rights at the U.S. Department of Health and Human Services (HHS). Under this ruling, HHS is barred from enforcing Section 1557’s protections for transgender people. However, the Section 1557 rule itself remains firmly in place. This means that covered entities, such as hospitals and state Medicaid programs, must continue to comply with Section 1557, and LGBTQ people continue to be protected from discrimination in health insurance and health care. We can’t emphasize this enough: LGBTQ people should never face discrimination and, if you do, you have rights and should contact Out2Enroll or a legal organization for help.
Advocates should also be aware that HHS has asked Judge O’Connor to stay the litigation to allow the Office for Civil Rights to reconsider the Section 1557 rule. We are currently awaiting his decision on this issue, but advocates should be prepared to educate and activate your networks about the importance of Section 1557 if and when the rule is reopened.
Thank you for everything you’re doing this Pride season—from spreading the word about enrollment at Pride festivals, to calling members of Congress to ask them to protect the ACA—and for your ongoing commitment to LGBTQ health. Out2Enroll and Community Catalyst will continue to keep you posted on new developments and what you can do to promote LGBTQ health equity.
Katie Keith is a member of the Steering Committee at Out2Enroll