During this Pride Month, California is a proud leader in protecting LGBTQ residents from discrimination in health care.
Indeed, California has a longstanding, albeit imperfect, history of protecting the rights of its LGBTQ residents. In keeping with this history, the state embraced the federal Health Care Rights Law (HCRL) Act, a landmark civil rights law that prohibits discrimination in health care, when it was signed in 2010. Now, the Trump administration is trying to roll back protections against discrimination in health care for LGBTQ people and others. Californians should celebrate the fact that state law provides significant protection against health care discrimination, and join other states to fight Trump’s attempts to sanction health care discrimination and limit access to care for LGBTQ people and others.
The HCRL represents the first time health care discrimination is prohibited at the federal level based on sex; gender identity, including transgender individuals; and sexual stereotyping. The law also reinforces longstanding protections for race, ethnicity, national origin, age & disability. In 2016, the Obama administration issued a final rule implementing the law after extensive public input. Those regulations adopt settled law that discrimination on the basis of sex includes discrimination on the basis of gender identity and sex stereotyping. The regulations flow from the language of the ACA and from the law interpreting the civil rights statutes on which the HCRL was built. But the current administration has proposed to roll back parts of those regulations, interpreting the law’s prohibition on discrimination much more narrowly. The proposed changes to the regulations, among other things, aim to limit the rights of LGBTQ people to be free from discrimination in health care, and remove transgender people’s entitlement to medically necessary gender-affirming care.
California is a recognized leader in protecting LGBTQ rights. The state was among the first to decriminalize same-sex sexual activity, to prohibit employment discrimination based on sexual orientation and gender identity, and to afford legal recognition to same-sex couples. But a lesser known part of California’s LGBTQ history is the strides the state has taken to protect LGBTQ Californians from discrimination in health care. California first prohibited sexual orientation discrimination in health insurance in 1991. Then, in 2005, California became the first state in the nation to prohibit discrimination in health care based on gender identity. The state expanded these provisions when it implemented the HCRL in state law in 2010 and 2013. Today, California law protects LGBTQ people from discrimination in health plan marketing, enrollment, terms, and benefit design. State regulators also provided guidance to plans in 2012 and 2013 to make clear that state non-discrimination law prohibited plans from denying medically necessary gender-affirming care. In 2013, California also issued guidance making clear that gender-affirming care is covered by Medi-Cal. In 2015, California became the first state to provide gender-affirming surgical treatment for transgender inmates in state prisons.
Even with these protections in place, however, LGBTQ Californians too often experience health care discrimination. Transgender Californians have been turned away by health care providers who refuse to provide them with medically necessary care. Covered California plans have charged more cost-sharing for medications used to treat HIV compared to those used to treat other chronic conditions (although Covered California has significantly addressed this issue in recent years). And a recent study found that Lesbian, Gay, and Bisexual Californians often delay necessary care, possibly in part due to past discrimination or fear of discrimination.
It is clear that LGBTQ people in California and all over the country still need protection against health care discrimination. Now is the time to strengthen anti-discrimination protections and ensure that those protections are enforced, not to weaken them. While we celebrate steps California has taken to protect its LGBTQ residents from discrimination in health care, we must work with other states to adopt similar protections. It is especially important now to fight the Trump administration’s unlawful attempts to roll back anti-discrimination protections in health care for LGBTQ people.
The National Health Law Program urges health care advocates and advocates for LGBTQ rights to comment on the proposed regulations to emphasize the importance of anti-discrimination protections for trans and LGBQ people and others, including pregnant people, those who have terminated a pregnancy, limited English proficient individuals, and people with disabilities.
