Over the objections of religious groups, Virginia is poised to mandate nondiscriminatory care for transgender patients

In a year when the General Assembly passed sweeping LGBTQ-friendly legislation, it’s a relatively low-profile health bill that has opponents questioning whether the state is going too far in its protections for transgender Virginians.

The Senate Commerce and Labor committee voted 12-2 on Monday to report a bill from Del. Danica Roem, D-Manassas, that would ban health insurance companies from denying or limiting coverage based on a patient’s gender identity or transgender status. The legislation, which passed the House 54-41, is expected to clear the Senate in a similarly party-line vote.

The bill codifies federal protections first established under the Affordable Care Act. In 2016, the Department of Health and Human Services issued final regulations clarifying that the law would extend nondiscrimination protections to patients on the basis of race, color, national origin, sex, age, or disability. While the federal government has never clarified that “sex discrimination” includes disparate treatment based on sexual orientation or transgender status (the subject of an ongoing Supreme Court case), the regulations make it clear that the federal Office for Civil Rights would consider gender identity when evaluating discrimination complaints from patients.

Since then, health insurance carriers have covered treatment that’s consistent with a patient’s gender identity, said Doug Gray, executive director for the Virginia Association of Health Plans. That can include hormone therapy for a patient experiencing gender dysphoria — the diagnostic term for someone whose gender identity doesn’t align with their sex assigned at birth.

Patients dictate the extent of their treatment, but current medical standards include hormones or gender reassignment surgery. Numerous research papers, including a 2018 study on transgender veterans, have found that the treatments can significantly improve mental health outcomes and reduce the risk of suicide.

Roem’s bill would require carriers to cover those treatments and other “medically necessary transition-related care,” including mental health services. It would also ban plans from denying coverage based on a patient’s transgender status or imposing extra fees.

“Even post-2017, transgender people are given misinformation about what these policies actually are,” said Roem, Virginia’s first openly transgender lawmaker. Supporters of the bill, including Gray, argue the policy simply codifies federal protections to ensure they’re applied equally to Virginia patients.

But shifting federal guidelines and inconsistent application of the regulations have led opponents to argue that the bill goes farther than other LGBTQ protections by mandating coverage for transition-related medical services. In his testimony against the bill, Jeff Caruso, founding director of the Virginia Catholic Conference, likened the legislation to the 2014 Hobby Lobby case — when a Christian-run craft store chain successfully challenged the contraception coverage requirement imposed by the Affordable Care Act.

“Due to the tenets of our faith, the health plans of the two dioceses I represent do not cover gender-transition surgeries,” he said in an email Tuesday.

“Our understanding of the human person is that one has an innate sexual identity that is reflected in the person’s biology,” he added. “Gender reassignment surgeries do not align with this understanding.”

Caruso argued that the bill should include a religious exemption, while Josh Hetzler, legislative counsel for the Christian-affiliated Family Foundation of Virginia, opposed the bill entirely.

“We’re creating a new category of personhood,” he argued in his testimony against the bill on Monday. Family Foundation President Victoria Cobb added that the bill set a new precedent by defining “gender identity” as an internal sense of gender that could include male, female, neither, or a combination of the two.

“How can anyone know how to provide medical direction to someone who claims they are an unknown combination of male and female?,” she wrote in an email on Tuesday. “Why should the insurance company bear the liability to cover unexplored areas of medicine?”

Their arguments gained little traction with members of the Senate committee, including Chairman Dick Saslaw, D-Fairfax, who sharply reminded Caruso that the Hobby Lobby ruling was narrowly tailored to apply to contraceptives. Sen. Lionell Spruill, D-Chesapeake — who visibly rolled his eyes during the opposing testimony — strongly implied that Catholic Church should refrain from criticizing anything on moral grounds in light of the ongoing sexual abuse scandals that have embroiled the church for years.

“One church should be the last to say that kind of stuff, given what’s going on,” he said during Monday’s meeting.

They garnered even less sympathy from Roem herself, who said she was unwilling to “explicitly deny care” for transgender patients under Virginia laws. Advocates argue that the law is especially important given proposed revisions to federal protections, which could roll back nondiscrimination mandates on the basis of sexual identity.

Even with the ACA requirements, health care plans often fail to cover services for transgender patients, said Afton Bradley, care coordination manager for the Virginia League of Planned Parenthood’s transgender health care services division.

Afton said roughly a third of VLPP’s hormone clinic patients, among those with insurance, were denied coverage by their insurance carriers. Sometimes the denials are based on administrative errors, such as a health plan flagging a prostate exam administered to a patient who identified as female. But Afton said insurers often made it difficult to correct the error during the appeals process, or ended up denying the claim after several weeks of back-and-forth.

“Unfortunately, that leads to a lot of our patients paying out of pocket or going without medication,” Afton said. “And we know that when patients don’t have access to transition care, there are serious consequences to their health.”