Note: Recognizing Transgender, Intersex, and Nonbinary People in Healthcare Antidiscrimination Law

By Derek Waller. Full text here.

Abstract: “Transgender people face frequent discrimination in healthcare by both providers and insurers. Insurers often deny them coverage for transition-related and routine “sex-specific” services. Even those who can access healthcare services struggle to find in-network physicians who will provide care in a way that respects their sexual and gender identity. The Affordable Care Act (ACA) prohibits sex discrimination in healthcare, but some courts, and the Trump administration, have argued that mistreating transgender people for being transgender does not constitute sex discrimination. This position relies on inaccurate assumptions about human sexuality and fails to recognize the existence of diverse sexual and gender identities.

This Note challenges those assumptions by defining sex discrimination in the ACA using contemporary scientific understandings of sex. Several factors define a person’s sex identity, and discrimination on the basis of any of these factors constitutes sex discrimination in the ACA. This definition of sex discrimination reflects the plain meaning of “sex” in the ACA and fits within the context of a healthcare reform statute. It also furthers the purposes of the ACA by increasing access to healthcare services and reducing discrimination. This Note engages in statutory interpretation to uncover a definition of sex discrimination that recognizes the common humanity of transgender, intersex, and nonbinary people. By following the framework of this Note, courts can reach a more accurate statutory definition of sex discrimination in the ACA that reflects contemporary science and promotes the policy objectives of the ACA.”