Proposed HHS Rule Would Ban Trans Healthcare From Essential Health Benefit Coverage In ACA Plans
Trump's most sweeping attack on trans healthcare so far could have devastating impacts on trans people of all ages on ACA plans, especially for those who don't live in trans sanctuary states.
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Guest contributor and policy analyst Corinne Green (Bluesky, Twitter) contributed her expertise and policy knowledge for this article.
President Trump’s Department of Health and Human Services is planning to publish a draft rule that would eliminate trans healthcare from the list of Essential Health Benefits (EHB) required to be covered in insurance plans offered on the healthcare marketplace established by the Obama-era Affordable Care Act (ACA) and bar states from themselves requiring its coverage as an EHB.
This proposal threatens to take a wrecking ball to hard-won advances in trans healthcare access in the wake of the Affordable Care Act. Although the rule would allow for individual states to mandate insurance plans to cover trans healthcare, it would still be excluded as an Essential Health Benefit, and as such those states would be required to reimburse insurers for costs associated with trans healthcare services. The EHB list, and standardized “benchmark plans” based on it, are used as a guide for many insurance plans across the country beyond the ACA marketplace, so the rule has wide-reaching implications.
Over the last five years, many states have been actively attacking trans healthcare access, signaling that it’s unlikely they would move to affirmatively respond by stepping in to ensure their marketplace plans include gender-affirming care. Other states have proactively worked to ensure and expand coverage, and they’ll need to continue to buck Trump and anti-trans Democrats like Gavin Newsom to maintain healthcare for their trans residents. If the rule goes into effect, states will need to make up for lost federal funding for trans healthcare and ensure their insurance plans remain resilient to trans care being banned from inclusion as an Essential Health Benefit.
The rule is likely to face legal challenges, but it represents the broadest attack on trans healthcare by the Trump administration so far. It would ban default coverage of all hormonal treatment and surgeries for trans people at any age for many private insurance plans, although it does not directly apply to government-funded healthcare like Medicaid, Medicare, or VA insurance (which, despite a Biden promise and protracted litigation from trans veterans, excluded coverage for surgery prior to Trump).
In order for this rule to go into effect, it must go through the full process of federal rulemaking under the Administrative Procedure Act, which includes a time period for public comment and a requirement for the government to respond to the public’s input. Considering the sweeping impact the rule could have on trans healthcare nationwide, the final rule may have to overcome court challenges from civil rights advocacy groups, medical provider organizations, and trans-protective states in order to go into effect.
This June, the Supreme Court is expected to rule in U.S v. Skrmetti whether bans on trans healthcare for minors violate the equal protection clause of the 14th amendment as illegal sex discrimination. That decision could impact the implementation of this HHS proposal and the outcomes of future litigation.
The rule exemplifies the importance of Democrats in Congress and blue states firmly standing up to the GOP’s vicious attacks on transgender existence in America, which can no longer be considered a distraction. The GOP is likely to try to include a federal ban on funding to any provider that provides trans healthcare in appropriation bills later this year, and Congressional Democrats must be united in their opposition to any such attacks on trans healthcare–even if doing so requires shutting down the government. They must not repeat their shameful vote to enact a ban on trans youth coverage in the military’s TRICARE insurance in last year’s National Defense Authorization Act.
LGBTQ+ people cannot afford to stand around and hope for Democrats to wake up and start protecting trans people. Even though Democrats voted down the extreme trans sports ban this year, many have followed Gavin Newsom and started pushing the message that trans people should be banned from sports by individual organizations and even have gone as far as to refer to trans girls as “physically boys.”
If Democrats can’t even resist misgendering trans kids in interviews or vote No on cloture for continuing resolutions that empower Trump, Elon, and DOGE, we must stand up for our own communities to force them into line. LGBTQ+ people and allies must continue to organize their communities and engage in strategic, ACT UP-style activism to resist these existential threats.
Corinne Green contributed her expertise and editing significantly to this article. In addition to being a prominent policy expert, Corinne is also a founding board member for the Trans Income Project, a nonprofit which supports trans sex workers in Louisiana that you can donate to here.
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