Nondiscrimination Protections in Gender-affirming Surgery: US Government’s Proposed Update to Section 1557 of the Affordable Care Act

On August 4, 2022, the US Department of Health and Human Services (HHS) published a proposed rule updating Section 1557 of the Affordable Care Act to strengthen civil rights protections for patients.¹ If implemented, the update would critically expand health-care access, particularly for individuals seeking gender-affirming surgery (GAS).

Originally passed in 2010, Section 1557 of the Affordable Care Act ensures access to and coverage of health care in a nondiscriminatory manner, specifically prohibiting sex-based discrimination. In 2016, HHS published its first rule implementing Section 1557 of the Affordable Care Act and defined gender-identity-based discrimination within the umbrella of sex-based discrimination.² In 2020, the Trump administration reversed the 2016 update by narrowing the scope of sex-based discrimination to again exclude gender-identity–based discrimination. Shortly thereafter, the US Supreme Court ruled in Bostock v. Clayton County, Georgia that anti-gay and anti-transgender discrimination in employment violate federal sex nondiscrimination law.

The 2022 proposed rule reinstates pre-Trump administration protections for LGBTQIA+ patients by defining sex-based discrimination to include gender identity, aligning Section 1557 with the Bostock ruling. The proposed rule ensures that providers and health systems receiving federal funds cannot deny transgender and gender-diverse (TGD) people surgical care that cisgender people would be offered. For instance, a plastic surgeon who offers breast reduction to cisgender women could not deny this procedure to TGD people. Moreover, the rule would prohibit health insurers from imposing additional cost sharing, denials, or coverage limitations for gender-affirming care. The proposed update clarifies that insurers are not obligated to cover surgeries for TGD individuals that they do not otherwise cover when medically necessary in cisgender people. Furthermore, providers are not expected to perform surgeries outside of their expertise or when unsafe due to a patient’s unique clinical characteristics. However, providers cannot refuse care to TGD people solely based on their belief that GAS is never beneficial.

Recent court decisions have affirmed religious exemptions for providers and health insurers.^3,4 This leaves many TGD people, especially those living in areas with few surgeons, increasingly vulnerable to gaps in care. To address this, HHS should take steps to ensure that TGD individuals without available affirming providers or health systems can access care, such as encouraging interstate pacts to allow for telehealth across state lines, easing preoperative and postoperative appointment access. In addition, national training guidelines on GAS-specific clinical skills, experience, and competencies should be implemented within relevant surgical residency programs, particularly plastic surgery programs. This move would significantly expand the workforce capable of performing such procedures.⁵

Health-care access is crucial for everyone, and this proposed update would further guarantee that TGD people can obtain the care and coverage they need. The update’s other components, such as expanding provisions for people with low English-proficiency or disabilities, and prohibiting discrimination on the basis of sexual orientation and diverse family unit structures, would all enhance health-care access and delivery for TGD people. Especially with increasing state legislation restricting gender-affirming care, we welcome HHS’s proposed Section 1557 update and encourage its swift finalization and implementation to improve access to GAS.

DISCLOSURES

The authors have no financial interest to declare in relation to the content of this article. The open access fee was paid for by Harvard University’s Open Gate Foundation grant.