Last October, a Connecticut Law Tribune editorial asked “When Will Health Care Be Free From Discrimination?” Noting that our state’s well-deserved reputation for protecting our weakest and most vulnerable citizens from discrimination had been illustrated with the passage of Public Act 11-55, which amended our state’s antidiscrimination laws to specifically prohibit discrimination based on gender identity and expression, the Law Tribune editorial asked Connecticut employers to step up and meet the legal and social challenge presented by health-care discrimination and eliminate the blanket exclusions in health insurance policies for gender identity-related medical treatments.
With neither fanfare nor controversy, Connecticut has stepped up and responded to the challenge. First, addressing the needs of its own employees, the state’s Health Care Cost Containment Committee agreed that all medically necessary gender identity-related medical requirements will be included in the state health plan. And then second, addressing the needs of other citizens in our state, the Connecticut Insurance Department issued a bulletin directing all insurance companies, benefit societies, hospital service corporations, medical service corporations and health-care centers that deliver or issue individual and group health insurance policies in Connecticut ensure that individuals are not denied access to medically necessary care because of the individual’s gender identity or gender expression.
In addition, the department has instructed these insurance providers to review all current health policy documents to ensure compliance with the bulletin and to revise any health plans which are not. Both the Health Care Cost Containment Committee and the state Insurance Department based their actions on Public Act 11-55′s prohibitions and determined that its nondiscrimination requirements apply to health insurance practices.
While Connecticut has stepped up, vigilance is always necessary. For example, in Illinois, a state that also prohibits discrimination on the basis of an individual’s gender identity, a transgender person recently filed suit against her primary care physician and health-care provider clinic for refusing to treat her (Taylor v. Lystila, No. 14-cv-02072 (C.D. Ill.)). The case is both interesting and notable because the plaintiff alleges a violation of the prohibitions against discrimination contained in the Patient Protection and Affordable Care Act (ACA § 1557(a), 42 U.S.C. § 18116(a)) because the clinic receives federal funds in the form of Medicare and Medicaid. ACA § 1557(a) mandates that “an individual shall not … be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance.”
Unlike other provisions of the ACA, § 1557(a) is not enforced through the Employee Retirement Income Security Act. Rather, violations are made enforceable through Title VI of the Civil Rights Act (prohibiting discrimination based on race or national origin in any program or activity receiving federal financial assistance).
Patients such as the plaintiff in Taylor place their health and well-being in a doctor’s hands and that is a trust unlike any other. Clearly, it takes more than a law to change hearts and minds, as this case illustrates. •