This guide is designed to help transgender individuals understand their legal rights in Washington State.

It is not meant to provide legal advice.

The current legal system assumes individuals identify as one gender, either male or female. While this guide provides an understanding of the current legal system, the ACLU recognizes that many people do not identify as male or female. A person may identify or express as a specific gender, both genders, or neither gender.

The law in this area changes frequently. This guide is current as of Septmeber 2023.

 

HEALTH CARE COVERAGE                

 

Does the law protect transgender people from discrimination in health care?

Yes. The Washington Law Against Discrimination (WLAD) prohibits discrimination against transgender people in places of public accommodation, which includes hospitals and other health facilities.[1] Thus, under Washington law, hospitals and clinics may not refuse to treat transgender patients or treat transgender patients differently from other patients because of their gender expression or identity.
 
Federal law also prohibits discrimination against transgender people in health care. Section 1557 of the Patient Protection and Affordable Care Act (ACA) prohibits discrimination on the basis of sex by any health program receiving federal assistance, as well as within any state Health Insurance Marketplace established under the ACA.[2] The federal agency that enforces the ACA’s antidiscrimination provisions announced that it interprets Section 1557’s ban on sex discrimination to prohibit discrimination based on gender identity and sexual orientation.[3] The agency also proposed rules to further solidify that Section 1557 prohibits discrimination on the basis of gender identity and sexual orientation, but those rules are not yet finalized.[4]
 
Most courts consider the issue have held that Section 1557 prohibits discrimination based on sexual orientation and gender identity, including with respect to accessing gender-affirming health care.[5] However, it is important to note that there is ongoing litigation around Section 1557, and some courts have found that Section 1557 does not prohibit discrimination on the basis of sexual orientation or gender identity; other courts have limited the government’s ability to enforce the statute against religious organizations.[6]

 

Does the law protect transgender people from discrimination in health insurance?

Yes. Both the WLAD and Section 1557 of the ACA, discussed above, provide protections from discrimination in health insurance. State law on health insurance also prohibits specific forms of discrimination on the basis of gender expression and gender identity. These laws, however, do not apply to self-insured plans.[7] State laws specifically prohibit:

• Automatic initial denials of coverage for reproductive health care services on the basis of gender identity;[8]

• A health carrier from denying or limiting coverage for gender-affirming treatment when it is medically necessary, is prescribed according to accepted standards of care, and is because of, related to, or consistent with an individual’s gender expression or identity;[9]

• A carrier from applying categorical cosmetic or blanket exclusions;

• A carrier from excluding as cosmetic certain services when prescribed as medically necessary gender-affirming treatment, including: “facial feminization surgeries and other facial gender-affirming treatment, such as tracheal shaves, hair electrolysis, and other care such as mastectomies, breast reductions, breast implants, or any combination of gender-affirming procedures, including revisions to prior treatment;”[10]

• A carrier from denying or limiting coverage of gender-affirming services unless the decision is confirmed by a healthcare provider experienced in providing gender-affirming care.[11]

 
In addition, the WLAD specifically prohibits discrimination against transgender people in insurance transactions.[12] Thus, under Washington law, health care insurers may not refuse to issue health insurance coverage, decline to renew health insurance coverage, cancel health insurance coverage, or specify different benefits, terms, rates, conditions, or types of health insurance coverage on the basis of a person’s gender expression or identity.
 
The Washington Office of the Insurance Commissioner (OIC) can take enforcement action against health carriers who discriminate in health care coverage on the basis of gender identity in violation of state law.[13] For example, OIC fined Aetna Life Insurance Company for refusing to cover breast augmentation surgery for a transgender policyholder. OIC found that Aetna covered the same surgery for cisgender women and that Aetna’s policy was discriminatory to transgender women.[14]

 

Does Washington state offer additional protections to people seeking or receiving gender-affirming care?

Yes. Washington state law prohibits Washington law enforcement, agencies, and courts from cooperating with out-of-state civil or criminal investigations and legal actions relating to the provision or receipt of gender-affirming care that is lawful in Washington state.[15] Further, in many instances, Washington licensed providers are protected from discipline in Washington for providing gender-affirming care that is consistent with standards of care and legal in Washington, even if another state does take disciplinary action.[16]
 
Finally, under a new Washington state law, beginning March 31, 2024 (and on June 30, 2024 for small businesses), many entities will not be allowed to collect, share, or sell an individual’s health care data, including data specifically related to gender-affirming care, without the individual’s consent.[17]

 

Are there government health care programs that provide coverage for gender-affirming care?

 
Yes. Coverage for gender-affirming care varies among government health care programs. Under Medicare, a federal program for individuals over 65 and individuals who are disabled, insurance coverage for medically necessary surgical and nonsurgical gender-affirming procedures is available. In May 2014, the U.S. Department of Health and Human Services (HHS) ended its outdated policy of categorically denying Medicare coverage for gender-affirming surgery. As a result, decisions about coverage for gender-affirming care are now made on an individual basis like all other services under Medicare. This does not necessarily mean that Medicare will cover gender-affirming surgeries for all patients, but it does mean that Medicare will no longer automatically deny claims for gender-affirming medical procedures.
 
Medicaid is a joint federal and state program for individuals and families with limited income and resources. Washington state’s Medicaid program is known as Washington Apple Health. Apple Health covers many medically necessary surgical and nonsurgical services for transgender individuals. These include services such as gender-affirming hormones, primary care visits, behavioral health visits, and various surgeries.[18] However, even with Apple Health coverage, it may be difficult in Washington to obtain gender-affirming surgeries as there are very few providers willing to accept Apple Health coverage for some of these procedures. Working with a primary care provider and an advocacy organization may assist transgender individuals in finding surgeons willing to accept Apple Health.
 
For public employees of Washington state, the Public Employee Benefits Board (PEBB) offers coverage for surgical and nonsurgical gender-affirming care, including hormone therapy and surgery.[19]
 
For active-duty and retired armed forces members under the federal TRICARE program, nonsurgical gender-affirming care is covered, including hormone therapy and psychological counseling. Gender-affirming surgery is not typically covered, but active-duty service members may request a waiver if the surgery is medically necessary.[20]