HHS Releases Guidance on Federal Protections for Gender-Affirming Care

On March 2, 2022, the Department of Health and Human Services (HHS) released new guidance on federal health privacy laws and civil rights protections that apply to gender-affirming care. HHS highlights protections under Section 1557 of the Affordable Care Act (ACA), Section 504 of the Rehabilitation Act, Title II of the Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA).

Federal Civil Rights Protections

Section 1557 protects an individual’s right to access health programs of recipients of federal funds without facing discrimination on the basis of sex, including gender identity. Federally funded covered entities categorically refusing to provide treatment to an individual based on their gender identity is prohibited discrimination. Similarly, restricting an individual’s ability to receive medically necessary care, including gender-affirming care, from their health care provider solely on the basis of their sex assigned at birth or gender identity likely violates Section 1557.

Section 504 protects qualified individuals with disabilities from discrimination in programs and activities receiving federal funds, and Title II protects qualified individuals with disabilities from discrimination in state and local government programs. In some cases, gender dysphoria may qualify as a disability under these laws. Restrictions that prevent otherwise qualified individuals from receiving medically necessary care on the basis of their gender dysphoria may, therefore, also violate Section 504 and Title II.

Federal Health Privacy Laws

HIPAA limits the circumstances under which health care providers and other entities may disclose protected health information (PHI), such as gender-affirming physical or mental health care administered by a licensed provider. HIPAA prohibits disclosure of gender-affirming care that is PHI without an individual’s consent, except in limited circumstances. However, the HIPAA Privacy Rule permits but does not require, covered entities to disclose PHI without an individual’s consent when required by another law.

Recap

• This guidance is intended to provide clarity regarding existing requirements under federal law related to gender-affirming care.
• Individuals who believe they have been discriminated against in seeking gender-affirming care may file a complaint with HHS’ Office of Civil Rights.
• A number of federal civil rights and health privacy protections apply to gender-affirming care.