Florida's new rule prohibiting transgender people from using Medicaid for gender-affirming medical care is likely in breach of federal law, according to the Department of Health and Human Services (HHS).
Last month, Florida's Agency for Health Care Administration (AHCA) rewrote the state's Medicaid rules to bar health care providers from billing the taxpayer-funded program for hormones, puberty blockers, gender-affirming surgeries, and "any other procedures that alter primary or secondary sexual characteristics" when they are used as gender dysphoria treatments.
According to The Hill, the change took effect Aug. 21 and affects an estimated 9,000 transgender Floridians.
In an email to The Hill, the Centers for Medicare and Medicaid Services and the HHS Office of Civil Rights said Florida's new rule likely violates Section 1557 of the Affordable Care Act, which bans health programs that receive federal funds from discriminating on the basis of sex, including sexual orientation and gender identity.
The federal agencies also said that HHS is concerned by the new rule and intends to take action to protect Florida Medicaid recipients' access to gender-affirming care, but did not provide additional details. Additionally, HHS is trying to prevent other states from following Florida's lead, the agencies said.
HHS proposed a rule in July that would expand the definition of sex discrimination in Section 1557 to include sexual orientation and gender identity, aligning it with the Supreme Court's ruling in Bostock v. Clayton County and previous actions by the Biden administration to broaden protections for LGBTQ Americans.
Oct. 3 is the deadline for public comment on the proposed rule.
Yale Law School Professor Anne Alstott told The Hill that, even if HHS determines that the Florida rule is in violation of Section 1557, the agency's options for handling the situation are limited.
"That will not prevent Florida from doing what it's doing, but it will set up a legal conflict with Florida and with other places that are trying to discriminate," she said.
In a June analysis, Alstott and a group of seven scientists maintained that Florida health officials' stance on gender-affirming health care "is thoroughly flawed and lacking scientific weight."
In a report issued that same month, the Florida AHCA contended that medical treatments for transgender minors are "experimental and investigational" and are inconsistent with "generally accepted professional medical standards."
The American Medical Association, the American Psychological Association and the American Academy of Pediatrics have all expressed opposition to restricting access to transgender medical care, according to The Hill.
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