By Emma Walsh-Alker

Happy Pride Month from CHIR! Each June, Pride is an opportunity to celebrate the LGBTQ+ community and honor the ongoing struggle for LGBTQ+ rights—including in health care access. This blog will examine the systemic barriers to health care coverage that the LGBTQ+ community faces, and highlight a few key coverage and access issues that continue to impact LGBTQ+ individuals with private health insurance.

Background

Historically, LGBTQ+ individuals have faced myriad barriers to health coverage and care, suffering a significantly higher uninsured rate than the non-LGBTQ+ population. Not long ago, insurers could deny coverage to LGBTQ+ individuals, members of same-sex couples were frequently unable to access insurance through their partner’s employer plan, and civil rights laws failed to adequately protect individuals facing discrimination in the health care system. After a long history of discriminatory laws and coverage policies, the LGBTQ+ community won several legal and legislative battles for equal rights.

The Affordable Care Act

As the first federal law to explicitly prohibit discrimination in health care programs and settings, the Affordable Care Act (ACA) established landmark protections for LGBTQ+ individuals. Section 1557 of the ACA outlaws discrimination on the basis of sexual orientation (as well as race, color, national origin, age, and disability) by health insurers, providers, and other health care entities receiving federal funding. Section 1557’s provisions relating to sex discrimination have been subjected to divergent rulemaking across presidential administrations and contentious litigation. However, the Biden administration currently interprets discrimination on the basis of sex to include discrimination based on both sexual orientation and gender identity, following the Supreme Court’s 2020 ruling in Bostock v. Clayton County.

In addition to its anti-discrimination protections, the ACA has expanded access to affordable coverage for LGBTQ+ populations. Uninsured rates among LGBTQ+ adults fell steadily from 17.4 percent in 2013, before the ACA was fully implemented, to a low of 8.3 percent in 2016. Coverage gains have been especially pronounced for low-income LGBTQ+ individuals; the uninsured rate among those earning less than $45,000 annually dropped from 34 percent in 2013 to 16 percent in 2020, and people in this demographic living in states that expanded Medicaid under the ACA are much more likely to have health insurance.

Thanks in large part to the Biden administration’s renewed investment in the health care safety net, overall coverage rates through ACA programs reached a record high in 2023. Unfortunately, our understanding of LGBTQ+ coverage trends remains limited by a persistent lack of data (though the Biden administration has proposed a roadmap to fill gaps in federal data collection on sexual orientation and gender identity).

Obergefell

Widespread legalization of same-sex marriage in Obergefell v. Hodges also expanded LGBTQ+ health coverage, particularly in the employer-sponsored insurance market. Same-sex partners that could not legally marry were frequently excluded from dependent coverage available to married couples. Recent research shows that the largest coverage increases within the LGBTQ+ population following the ACA’s passage occurred for partnered LGBTQ+ people benefitting from dependent coverage through private health insurance—likely from the combined impact of the ACA and Obergefell.

Persistent Disparities

Despite these legal protections and coverage gains, health care disparities persist for LGBTQ+ individuals. Eighteen percent of LGBTQ+ adults and 22 percent of transgender adults have avoided seeking health care due to fear of discrimination. More than one in eight LGBTQ+ people live in states where health care providers can deny them treatment. LGBTQ+ individuals are also more likely to report financial barriers to accessing care. While disparities permeate LGBTQ+ individuals’ experiences with the health care system as a whole, this blog focuses on a few of the key coverage issues for people with private health insurance.

Current Private Coverage Issues for LGBTQ+ Individuals

HIV-related Services

The HIV/AIDS epidemic of the 1980s was both a public health crisis and a catalyst for gay rights activism. Until the ACA’s passage, health insurers could deny coverage based on an individual’s perceived risk—leaving those living with medical conditions, including HIV/AIDS, at a huge disadvantage when seeking coverage through the individual market. Even when health coverage was attainable, annual and lifetime limits made most private insurance cost-prohibitive given the high financial cost of treatment. The ACA prohibited these discriminatory practices, making individual market coverage much more accessible for individuals with HIV diagnoses, the majority of whom are men who have sexual contact with other men. Under the ACA, non-grandfathered health plans must cover pre-exposure prophylaxis (PrEP)—a preventive medication for individuals at risk of contracting HIV—with no cost sharing. However, a recent ruling invalidating part of the ACA’s preventive services requirement in Braidwood Management v. Becerra threatens to reverse this progress if it takes effect, with potentially devastating impacts on access to HIV/AIDS prevention.

Behavioral Health Care

Despite an overall increase in access to health care services, LGBTQ+ individuals have consistently reported difficulty accessing behavioral health care even after ACA implementation. LGBTQ+ individuals are twice as likely to experience a mental health condition compared to their non-LGBTQ+ counterparts. Behavioral health disparities are particularly prevalent among LGBTQ+ youth: according to the Trevor Project’s latest national survey, a staggering 41 percent of LGBTQ+ young people seriously considered attempting suicide in the past year, with transgender, nonbinary, and/or people of color reporting higher rates of suicidality. The same survey found that 56 percent of LGBTQ+ youth who wanted mental health care in the past year did not receive it.

Barriers to behavioral health care are well-documented, particularly for marginalized groups. Though health insurers must comply with federal mental health parity requirements, enforcement of these safeguards has been a challenge, and the unique behavioral health obstacles facing the LGBTQ+ community exacerbate already widespread access issues.

Gender-affirming Care

2023 has been a record-breaking year for anti-LGBTQ+ bills introduced in state legislatures, many of which seek to restrict access to gender-affirming care for transgender youth. Gender-affirming care is medically necessary, evidence-based health care that encompasses a range of services, including treatment for gender dysphoria. Nineteen states have passed laws banning provision of gender-affirming care for minors, with limited exceptions. In five of these states—Oklahoma, Florida, Alabama, North Dakota, and Idaho—health care professionals who provide gender-affirming care to minors may face felony charges. Major medical associations have opposed these care restrictions, including the American Medical Association and the American Academy of Pediatrics.

Because health coverage of gender-affirming care varies across and even within states, privately insured patients are often left to navigate a fragmented landscape when seeking coverage for these services. Out2Enroll’s 2023 report on transgender exclusions in Marketplace plans found that just over half of 1,677 silver plans studied across 33 states covered gender-affirming care for plan year 2023; 9.5 percent of plans studied explicitly excluded gender-affirming care; and 21 percent of plans provided no information.

While some states have restricted gender-affirming care, others have taken steps to preserve and bolster access. Twenty-four states and the District of Columbia explicitly prohibit health insurers from excluding gender-affirming care coverage. As of this year, Colorado became the first state to expressly include gender-affirming care as an essential health benefit in their benchmark plan for the individual and small group market.

Looking Forward

In 2022, the Biden administration proposed a rule to restore and strengthen the ACA’s nondiscrimination protections that were significantly weakened by the Trump administration. If finalized, the rule would broaden interpretation of Section 1557 to prohibit discrimination on the basis of sex stereotypes, sex characteristics, sexual orientation, gender identity, and pregnancy or related conditions. Among other important changes, the proposed rule makes clear that insurers cannot categorically deny or limit coverage of gender-affirming care services in any way that results in discrimination on the basis of sex.

Advocates, policymakers, and other stakeholders have made enormous strides over the last decade to ensure LGBTQ+ individuals have access to health coverage and care. But the current wave of discriminatory legislation and challenges to the ACA shows that the fight for LGBTQ+ rights, and access to health care, is far from over.

Resources

Out2Enroll 2023 Trans Insurance Guides
The Trevor Project
988 Suicide & Crisis Hotline
HHS Office of Civil Rights
Lambda Legal
HIV.gov
Navigator Resource Guide