feature image photo by Guy Smallman/Getty Images
The next step in the Trump Administration’s plan to make life as difficult as possible for trans people in this country is on its way, and only a few independent news outlets are talking about it, despite its potential impacts on almost everyone in the U.S. who buys their healthcare through the Affordable Care Act (ACA) marketplace. In a move that many politicians, leaders, and pundits across the media and social media tried to convince us “wasn’t going to happen,” Trump, Robert F. Kennedy, Jr., and the rest of the leaders at the Department of Health and Human Services are trying to push forth a proposed rule from the Centers for Medicare & Medicaid Services (CMS) that would stop insurance plans sold on the ACA marketplace from including gender-affirming care for both trans minors and trans adults.
If the CMS rule goes through, it poses a number of significant problems for trans people who have ACA marketplace plans. Mainly, it puts trans adults with ACA marketplace plans at risk of being dropped from their plans because of their status as trans people, and it places undue, higher medical out-of-pocket costs on trans people who are seeking or currently receiving gender-affirming care. Essentially, it could put gender-affirming care out of reach for thousands of trans adults who are on these plans, further disenfranchising a population in the U.S. we already know has become increasingly vulnerable to political, medical, and social attacks over the last few months.
According to Orion Rummler at The 19th, “The proposed rule would affect ‘essential health benefits,’ services that individual and small-group marketplace plans are required to cover. Essential health benefits refer to basic care, like hospitalization, mental health services and prescription drugs, as mandated by the Affordable Care Act. Under the proposed CMS rule, insurers would be barred from covering those services as essential health benefits when provided to trans people as gender-affirming care.”
How Will This Impact Access to Gender-Affirming Care for Adults?
The rule doesn’t ban gender-affirming care for adults outright as of right now, but as we’ve seen since the Trump Administration took office, they have continually tried to disrupt access to gender-affirming care by using CMS to tell states to stop providing gender-affirming care for minors, by threatening to withhold federal funding from hospitals that provide gender-affirming care and, most recently, by ordering the National Institutes of Health to research “trans regret” and “the rate of detransitioning” in trans people. This will be an additional roadblock to trans adults — especially impoverished, low income, and disabled trans adults — from receiving the care they want and need from their medical providers even though they’re paying these insurance companies thousands of dollars a year to ensure that’s possible.
“‘It’s a clear signal that, certainly, the federal government would not be looking to ensure that coverage is not discriminatory, as it has been doing before,’ said Katie Keith, director of the Center for Health Policy and the Law at Georgetown University,” in an article on this issue by Maya Goldman in Axios.
Although some states have protections in place that prohibit gender-affirming care exclusions in health insurance offerings, the CMS proposal would implement an overarching federal provision that would make states absorb the cost of any required coverage of gender-affirming care that isn’t included in a plan’s “essential health benefits” (EHB). The proposal states that “if any State separately mandates coverage for sex-trait modification outside of its EHB-benchmark plan, the State would be required to defray the cost of that State mandated benefit as it would be considered in addition to EHB.”
It isn’t clear yet how states would respond if the rule is put into place, but it feels inevitable that at least some of them will comply with the rule and/or take away these protections entirely to help prevent the state from taking on the additional cost of this care.
As it’s currently written, the proposal would not immediately impact employer-provided insurance, but it’s unclear how this precedent of a ban on ACA coverage could increase costs of gender-affirming care for trans adults on employer-provided insurance and further the Trump Administration’s anti-trans agenda.
This Anti-Trans Healthcare Proposal Is Very Illegal but Still Concerning
Meanwhile, the proposed rule itself is a serious violation of Section 1557 of the Affordable Care Act, which states: “It [is] unlawful for any healthcare provider that receives funding from the Federal government to refuse to treat an individual – or to otherwise discriminate against the individual – based on race, color, national origin, sex, age or disability. Section 1557 imposes similar requirements on health insurance issuers that receive federal financial assistance. Health care providers and insurers are barred, among other things, from excluding or adversely treating an individual on any of these prohibited bases.”
This means that, if passed, the proposed rule could certainly face legal challenges in the courts, but legal challenges are usually not enough to prevent people from complying early to these rules and putting them into place despite ongoing disputes.
In general, health insurance plans cannot drop you mid-term, unless you’ve failed to pay your monthly premiums or lied on any submitted documentation. They also cannot change their scope of coverage mid-term — you’re in a contract with the insurer for an entire year. Per current legal protections, any changes to your coverage wouldn’t be implemented until your plan renews (or until you change your plan mid-term yourself by adding a dependent to your coverage through a qualifying life event). That said, Trump’s administration has shown a consistent disregard for laws, policies and regulations, so who knows what they might be able to pull off, and as aforementioned, hospitals and doctors could comply early to the rules and change what they’re offering to patients.
Considering all of the discriminatory changes that have been taken against trans people since the Trump Administration took office and the fact they seem poised to continue making some of the worst financial decisions in American history, it seems safe to say this rule will likely go into effect in the very near future. And while we can’t know for certain what that will look like, it doesn’t mean there is nothing you can do in response. If you’re a trans person reading this and you know you’ll be impacted by these changes, you should speak with your medical providers as soon as possible to try to lay out a plan that will allow you to receive affordable gender-affirming care in some capacity should this proposed rule become a policy. If you believe you’re able to move up surgery dates or other treatments just in case this rule might stop those treatments from happening or being covered by your insurance, you should speak with your doctor about doing just that.
A more long-term solution to this is going to take an extensive amount of organizing against these policies and in spite of them, but for right now, people should be helping themselves and helping others find ways to stay protected in the face of the imminent passing of these proposals.
Read more of Autostraddle’s coverage of the Trump Administration
- Three anti-trans bills were defeated in Montana — with Republican support.
- The Gender Liberation Movement wants to create an antidote to Project 2025.
- The word ‘transgender’ was removed from the official Stonewall Monument website.
- Talking points you need to challenge anti-trans rhetoric regarding trans healthcare for youth.
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Thank you for covering and laying this deeply dismal news out so clearly.
This is very important coverage, thank you Stef. Dismaying to see how little coverage this proposed rule is getting elsewhere, very grateful for AS and your stories on queer & trans rights as we live through these nightmarish developments