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The health care landscape for gender-affirming care stands at a pivotal moment as the country awaits the Supreme Court’s decision in U.S. v. Skrmetti, slated for mid-2025. The complex interplay between the Biden administration’s section 1557 final rule, competing state-law gender-affirming care bans and the pending Supreme Court decision adds to ongoing uncertainty around health care discrimination protections for transgender individuals and health care providers’ obligations under federal and state law.
Whether section 1557 prohibits discrimination on the basis of gender identity remains unsettled
On May 6, 2024, the Biden-Harris administration, through the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) and Centers for Medicare & Medicaid Services (CMS), published a final rule implementing section 1557 of the Affordable Care Act (ACA). The final rule explicitly classifies discrimination based on gender identity as a form of sex-based discrimination. Although the rule does not require coverage of specific services, it prevents discriminatory exclusion of categories of care, and therefore prohibits ACA-covered entities from denying or limiting coverage for gender-affirming care, such as hormone therapy, surgeries and other treatments related to gender transition, solely based on an individual’s gender identity.
Although the final rule was supposed to be enforceable starting in 2025, there is currently an injunction on its enforcement due to the Southern District of Mississippi’s ruling in Tennessee v. Becerra. On July 3, 2024, the district court invoked the U.S. Supreme Court’s recent Loper Bright decision (which overruled the principle of Chevron deference to agency interpretations) to decline to defer to HHS’s interpretation of section 1557 and, thereby, issued a nationwide injunction enjoining the Biden administration from “enforcing, relying on, implementing, or otherwise acting” under the final rule’s gender identity provisions. Notably, the district court stayed the effective date of the regulations nationwide as to specific parts of the non-discrimination provision, in so far as they extend “discrimination on the basis of sex” to include discrimination based on gender identity. This includes the final rule’s provision that covered plans cannot deny or limit coverage to patients based on gender identity or sex assigned at birth, adopt or apply a categorical exclusion or limitation for health care services sought for the purpose of gender transition or other gender-affirming care, or otherwise deny or limit coverage or impose additional cost sharing for such care.
- Supreme Court's decision in U.S. v. Skrmetti will significantly influence gender-affirming care laws and federal regulation
- Biden administration's section 1557 final rule prohibits discrimination based on gender identity, but its enforcement is currently enjoined nationwide
- Twenty-four states have enacted laws restricting gender-affirming care, creating a complex and conflicting legal landscape for health care providers and insurers