Following The Rules: The Impact of Federal Regulatory Changes on Access to Gender-Affirming Care for Transgender Americans

Abstract

Today, roughly 1.4 million adults identify as transgender in the United States. Although this community has seen spectacular progress and increased visibility since the turn of the millennium, discrimination continues to be a fact of everyday life. Of particular concern to transgender Americans, is the discrimination they face when accessing health care. Access to gender-affirming care is a critical axis upon which transgender wellness hinges, but this basic human right remains out of reach for countless transgender individuals. Although Section 1557 of the Affordable Care Act (ACA) sought to eliminate discrimination in public health care, the federal regulatory developments that followed its implementation have blunted its potentially positive impact.

Following the enactment of the ACA in 2010, the nondiscrimination provisions of Section 1557 underwent numerous rapid changes as a result of the 2016 final rule, the Supreme Court’s decision in Franciscan Alliance v. Azar, and the 2020 final rule. Each of these inflection points had significant implications for the transgender community as they determined whether nondiscrimination protections would extend to transgender people and which entities would be required to comply with such federal regulations. This thesis contributes to existing research on inconsistencies in access to gender-affirming care by examining the patient-level consequences of these regulatory changes to Section 1557. More specifically, this analysis examines how these consequences have differed between states with diverging policy environments, and identifies the barriers to care which persist across states.

To isolate the impact of changes to Section 1557 and the inconsistency with which those changes have been felt across the United States, this thesis uses two states as case studies: California and Texas. These case studies were researched through a series of in-depth semi-structured interviews with both providers of transgender care and advocates for transgender care in each state. A qualitative discussion of this field data considers each state’s experience with Section 1557 and the barriers to gender-affirming care that remain in place today.

The results confirm that the ACA, Section 1557, and the federal regulatory changes that followed its initial implementation have each had significant consequences for transgender people in states with extensive protections for gender-affirming care versus states with none. The results also reveal, however, that the impact in these respective state policy environments has been vastly different in nature and scale. These findings demonstrate the inconsistency and inequity that pervade access to gender-affirming care across all states. They also point to the Medicaid expansion, state-level transgender nondiscrimination laws, and patient advocacy as critical links to ensuring equal access to transgender care. As such, this thesis offers three corresponding policy considerations to better provide consistent and equitable access to gender-affirming care in the United States.