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New protections for transgender patients are coming

For years, transgender adults have faced discrimination in healthcare so hostile it’s almost laughable. Almost.

“A trans-woman broke her arm playing softball,” said Mara Keisling, executive director the National Center for Transgender Equality. “The insurance company refused to pay for it because if she hadn’t been transgender she wouldn’t have been playing softball. There’s just a million stories like that.”

The U.S. Department of Health and Human Services is finalizing specific provisions of a rule under the Affordable Care Act that broadens civil rights protection.

This is the first federal law to prohibit discrimination on the basis of sex in healthcare, which means hospitals, nursing homes, health insurers and doctors are barred from discriminating against transgender Americans as well as others based on sex.

This new rule puts the entire industry on notice. It’s now illegal to discriminate against people based on their sexual orientation, just like it’s been illegal to deny care to people based on age, religion or race. Friday is the deadline for the Obama Administration to finalize new rules.

HHS’s Jocelyn Samuels said that means insurers can no longer categorically deny services. For example, take gender transition care.

“If an insurer said, ‘we will not cover any services related to gender transition, we will treat that as a denial of access to coverage’ that is prohibited by the ACA,” she said.

Once the final rule is in place, University of Michigan Law Professor Sam Bagenstos, a former assistant attorney general for civil rights under the Obama Administration, said he can imagine scenarios where an insurer covers some services, but gender transition remains expensive.

“It gets gray pretty quickly,” he said. “I think the real question is how much is HHS going to feel willing to say in the abstract about these questions.”

While this likely opens the doors to more lawsuits, Keisling of the National Center for Transgender Equality noted this gives people legal standing for the first time.

“When they go to the doctor and the doctor say ‘I don’t feel comfortable,’ they know they have the ability to say, ‘I am a human being and you have to treat me. I have a legal right to get medical care,’” Keisling said.

Keisling estimates there are some 1 million transgender Americans, some of whom have stopped seeking medical care due to bad experiences in the past.