When Brianna Titone, who this year became the first openly transgender person to serve in Colorado’s General Assembly, tried to update the gender listed on her insurance benefits, her provider said it wouldn’t do so until she first changed her birth certificate — an onerous process. But an Affordable Care Act provision dictated that health care and insurance providers couldn’t discriminate on the basis of gender identity, and Titone was able to strong-arm her insurance provider.
“I had to quote the ACA and tell them my attorney would be happy to talk to them. Then they said they’d change it right away,” Titone said. “Insurance companies feel transgender people cost them more money than somebody else might. They don’t want to perform services that transgender people need to live their lives to the fullest.”
Soon, the protections Titone was able to leverage could vanish. The U.S. Department of Health and Human Services on May 24 proposed narrowing the definition of discrimination in the ACA to exclude gender identity, thus allowing doctors to lawfully refuse service to transgender or gender-nonconforming individuals. HHS finalized another rule earlier in May allowing doctors to refuse transition-related care on the grounds of religious beliefs; that rule is being challenged in court. Together, these measures pose significant risk to trans people in the West.
Rural areas, in particular, rarely have the trained doctors or facilities that provide the specific care transgender patients need. Zuri Moreno, with the TransVisible Montana coalition, said finding gender-affirming care is a barrier many in Montana face. Even finding doctors for routine check-ups can present a challenge.
“If I need to go in and make sure my body’s healthy, is there a doctor close by that I can access who will use my pronouns and talk to me in the way I need about my health?” Moreno, a trans nonbinary and uses the pronouns they/their, said. “They might know how to do a procedure, but am I going to feel comfortable as a patient?”
HHS Office for Civil Rights Director Roger Severino said including gender identity protections in the ACA overstepped Congress’s definition of sex discrimination. The proposal notes his office will continue “robust” enforcement of civil rights law, but some in the transgender community say they feel targeted by President Donald Trump’s administration.
“Trump is coming after the trans community. He is removing protections and opening up the door to discrimination,” Moreno said.
Last month’s proposal would mean doctors could refuse to help transgender patients for any reason, not just for transition-related care.
“We need to get policies in place to protect trans and nonbinary people,” Moreno said. “Gender-affirming care is lifesaving.”
Lifesaving because states in the Mountain West have the highest rates of death by suicide, according to the Centers for Disease Control and Prevention, and transgender populations are especially vulnerable. A 2015 survey by the National Center for Transgender Equality found that 40 percent of respondents had attempted suicide — nearly nine times the rate of the general population. Half of trans male teens have attempted to take their own lives, according to the American Academy of Pediatrics. Transgender youth are at two to three times greater risk for depression, anxiety, and self-harm.
Gender-affirming care for transgender people varies with each person, according to Hannah Wilson, a counselor who treats transgender patients in Bozeman. “Transition doesn’t always mean male to female or female to male — there’s a gray area in the middle,” she said.
Physical health care for transgender people exists on a spectrum, too. In some cases, transgender patients will seek hormone therapy. Others choose gender confirmation surgery. Some patients are satisfied with changing their names and the way they dress. Having access to doctors who can diagnose and validate a patient’s gender identity is integral to their overall wellbeing, Wilson said. That’s why she’s concerned about the Trump administration’s proposal to reverse gender identity protections.
“We’ll be able to pick and choose who we are treating and how we treat them. That’s concerning because it means providers may not give any validation to an actual diagnosis,” Wilson said. “I think fear drives so much of this administration, and not research or evidence-based practices.”
The rollback would apply to insurance companies, as well. Before the ACA, some insurers considered being transgender a pre-existing condition that justified higher premiums.
“[The ACA] was a godsend,” said Anne Harris, a transgender woman and therapist based in Missoula. “People could get some of the things they desperately needed, like access to mental health care.”
The Obama administration amended the rule regarding gender identity as a protected class in the ACA in 2016 to include a person’s internal sense of being “male, female, neither, or a combination of male and female.” Months later, five states successfully sued to block the rule’s implementation. The Trump administration’s proposal to revoke the gender identity protections stems from this ruling.
Currently, a patchwork of state health care and insurance laws offer varying degrees of gender identity discrimination protection. In the West, Wyoming, Idaho, Utah, and Arizona have no laws protecting transgender people from insurance and provider discrimination, based on information collected by the Movement Advancement Project.
Colorado, by contrast, has some of the most progressive protections for transgender people in the region. In April, the state’s Division of Insurance banned insurance companies from denying coverage for procedures like hormone therapy or transition surgeries. Governor Jared Polis this year signed laws banning conversion therapy and allowing transgender residents to update their birth certificates without the need for gender reassignment surgery or a doctor’s note. All this was in response to the state’s own track record of subpar care for trans residents. A survey by One Colorado found 34 percent of transgender respondents were denied LGBTQ-specific care in 2018.
“There are still a lot of holes in the coverage that trans people can get depending on the type of plan that they have,” Titone said. She points to the case of Dashir Moore, a Colorado transgender man who filed a complaint against InnoSource, his former employer. Moore alleges that the company, which offers its own insurance plans, refused to pay for his gender confirmation surgery and treatment for gender dysphoria after initially approving the procedures. The Trump administration’s proposed rollback would protect actions similar to this.
“They’re trying to push this religious freedom aspect,” Titone said. “I think that’s very concerning, because what is religious freedom when it comes down to it? If we allow a group of people to discriminate against another, how far is that going to go?”
