Governor Andrew M. Cuomo announced multi-agency opposition to the federal government's proposed rollback of healthcare protections for transgender and gender nonconforming individuals. The New York State Department of Financial Services, Division of Human Rights and the Office of Children and Family Services submitted comments urging the federal government to abandon the U.S. Department of Health and Human Services proposal that would undermine discrimination protections for transgender and gender nonconforming individuals and limit the types of insurance that must comply with the Affordable Care Act's nondiscrimination protections. The State Department of Health, the Office for People with Developmental Disabilities and the Office of Mental Health will also submit comments in opposition to the proposed rule this week.
"While the federal government continues its assault on healthcare and the LGBTQ community, New York is fighting back," Governor Cuomo said. "We took immediate action this year to ensure all New Yorkers are protected from insurance discrimination - regardless of what happens in Washington -- but this proposed rollback is repugnant to our values and it must be stopped. In New York, our bottom line is this: we will not allow this noxious rule to impact transgender and gender nonconforming New Yorkers' right to healthcare."
"We have continued to lead the nation with our efforts to protect the rights of the LGBTQ community, including passing GENDA, banning conversion therapy, and eliminating the gay and trans panic defense," said Lieutenant Governor Kathy Hochul. "That work continues as we fight back against a federal government that threatens to rollback our progress. As the birthplace of the LGBTQ rights movement, we have a responsibility to oppose the discriminatory policies coming out of the White House and ensure continued protections for transgender and gender non-conforming Americans."
DFS Superintendent Linda A. Lacewell said, "Government's job is to treat its citizens equally, and removing these important protections is tantamount to discrimination. In New York, we support all of our people, particularly those who have historically faced discrimination, and we call on the federal government to do the same."
DHR Commissioner Angela Fernandez said, "Individuals who do not identify with the sex they were assigned at birth are already vulnerable, subject to widespread discrimination and marginalization. Disparities in access to healthcare must be reduced, not enhanced. NYSDHR has an obligation to deter discrimination in places of public accommodation and will continue to vigorously enforce the New York State Human Rights Law which prohibits discrimination based on gender identity or expression."
Department of Health Commissioner Dr. Howard Zucker said, "New York State is committed to stamping out discrimination in all forms, and these proposed federal actions are an attempt to reverse many of our gains. By removing these nondiscrimination provisions from the Affordable Care Act, the proposed rule will effectively permit discrimination against transgender and LGBQ people, rebuilding barriers to healthcare which we have worked so hard to tear down."
OPWDD Commissioner Theodore Kastner, MD, MS said, "People with developmental disabilities are already subject to discrimination in their daily lives. Adding gender-based discrimination to the mix brings further inequality to an already vulnerable population that relies heavily on accessible healthcare."
OMH Commissioner Dr. Ann Sullivan said, "Transgender and LGBTQ individuals have the right to access the same quality healthcare as all New Yorkers. Transgender and LGBTQ individuals are at a higher risk for depression, suicidal thoughts and other mental health concerns, due to experiences of harassment, discrimination and rejection. It is critical that discrimination and disparities in healthcare for this community be eliminated.
On June 14, 2019, the U.S. Department of Health and Human Services proposed a rule that would repeal a federal regulation that clarifies that the Affordable Care Act's non-discrimination protections based on sex include protections based on gender identity and sex stereotyping. However, under the New York State Human Rights Law, discrimination based on gender identity or expression is prohibited in employment and licensing, public accommodations (which includes healthcare providers), housing, education and credit. While New York State law will protect against the federal government's proposed changes, the changes, if implemented, will impose an additional regulatory burden on the Department of Financial Services because many insurers will try to roll back their nondiscrimination policies. The proposed rule will also negatively impact the healthcare industry by creating confusion among healthcare providers and recipients alike and will also negatively impact access and quality of care.
The DFS today issued a letter arguing that the proposed rule:
- Removes gender identity and sex stereotyping from the definition of sex discrimination and reduces the scope of protections for individuals who have historically faced discrimination.
- Proposes to eliminate additional nondiscrimination protections based on sexual orientation and gender identity from a host of other provisions overseen by the Centers for Medicare and Medicaid Services (CMS).
- Harms a significant number of individuals by eliminating notice provisions to address discrimination, reduces healthcare access to those with limited English proficiency (LEP), discriminating against those with HIV/AIDS and other serious medical conditions, and reducing access to abortion services.
The Department of Financial Services has previously issued circular letters advising issuers that they must cover all medically necessary treatment for gender dysphoria; cover infertility treatment regardless of sexual orientation or marital status; cover PrEP for the prevention of HIV infection; and that issuers may not deny claims because the gender of the individual does not match the gender of someone to whom those services are typically provided.
In response to the pervasive discrimination based on gender identity in healthcare, NYSDHR has issued a guidance document to the public highlighting how New Yorkers are protected from gender identity discrimination by hospitals. This document makes clear: it is unlawful to deny equal access to a hospital because of gender identity or expression; indicate that transgender persons are unwelcome or objectionable; refuse to use a transgender person's legal name; refuse to refer to a transgender person by that person's requested pronouns; deny the use of rest rooms or other facilities consistent with a person's gender identity; refuse to treat a transgender person because that person has complained about discrimination.