U.S. rule on gender care meets Arkansas fight

Mark White (left), the deputy director of the Arkansas Department of Human Services, and U.S. Health and Human Services Secretary Xavier Becerra are shown in these September 2022 file photos. (Left, Arkansas Democrat-Gazette/Staci Vandagriff; right, AP/Julia Nikhinson)
Mark White (left), the deputy director of the Arkansas Department of Human Services, and U.S. Health and Human Services Secretary Xavier Becerra are shown in these September 2022 file photos. (Left, Arkansas Democrat-Gazette/Staci Vandagriff; right, AP/Julia Nikhinson)

Arkansas officials are pushing back against a proposed federal rule change that could require Medicaid providers and private insurers to cover gender-affirming health care treatments.

If adopted, the proposed change from the U.S. Department of Health and Human Services would strengthen protections against discrimination in health care for LGBT people. The proposed rule change, announced in July, would undo a rule change made under the Trump Administration.

Arkansas Department of Human Services Deputy Director Mark White told lawmakers during a committee meeting Wednesday that, if adopted, the rule change could apply to the state's Medicaid program and private health insurance plans.

"With these proposed rules, the department attempts to enact a radical policy agenda without legal authority to do so," White wrote in a letter to U.S. Health and Human Services Secretary Xavier Becerra.

In a statement in July, Becerra said the proposed rule "ensures that people nationwide can access health care free from discrimination."

"Standing with communities in need is critical, particularly given increased attacks on women, trans youth, and health care providers," Becerra said. "Health care should be a right, not dependent on looks, location, love, language, or the type of care someone needs."

Debates over transgender health care have become a major topic in Arkansas after Republican lawmakers passed a ban on transgender health care treatments for children. In August, a federal appeals court issued an order temporarily blocking the state from enforcing the ban.

At the center of the proposed rule is a disagreement over the interpretation of a 2020 U.S. Supreme Court decision, Bostock v. Clayton County, in which the court's majority held that federal civil- rights protections on sex and gender also apply to gender identity.

Writing for the majority, Trump-nominated Justice Neil Gorsuch wrote "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."

White said the federal government's attempt to interpret the Bostock decision to extend federal funding for trans health care treatments was a misunderstanding of the ruling.

"In Bostock, the court arrived at the idea that discrimination on the basis of sex or gender includes discrimination that's tied to gender identity," White said. "And so they're trying to bootstrap that and apply that to gender transition treatments."

Booth Rand, general counsel with the Arkansas Insurance Department, said the proposed rule change could mean state Medicaid funding for those seeking gender-affirming healthcare, although whether the federal government could enforce the policy in Arkansas is a different matter.

"There would have to be a federally mandated law that requires the state to cover transgender services in their essential health benefits," Rand said. "Until there is a federal law requiring it, I don't believe [Health and Human Services] can impose this requirement."

Rand said the rule would also apply to private insurers, requiring many plans to cover transgender health care services. Some lawmakers on the committee said the proposed rule could mean an increase in health care costs.

Statements from two of the state's largest private health insurers -- Arkansas Blue Cross and Blue Shield and Centene -- said the proposed regulation would not affect premiums.

"Arkansas Blue Cross and Blue Shield (ABCBS) does not see any impact on premiums if the coverage ordered by the HHS rules are put into place," Max Greenwood, vice president of government and media relations for Arkansas Blue Cross and Blue Shield, said in a statement. "Part of the reason is that we left everything in place once it was initially ordered during the administration under President Obama."

State Rep. David Ray, R-Maumelle, pushed back on Arkansas Blue Cross and Blue Shield's statement, saying, "I imagine this would have some sort of impact."


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