On November 10, the U.S. Supreme Court will hear oral arguments in California v. Texas, the latest in a series of attempts by the Trump administration to repeal the Affordable Care Act (ACA). Despite widespread criticism from a range of legal experts, the administration and 18 Republican governors and attorneys general will argue for the ACA to be struck down in its entirety, even as the country continues to cope with the disastrous economic and public health impacts of the COVID-19 pandemic. With the existence of the entire ACA at stake, potential losses of coverage and health benefits would be most detrimental for LGBTQ people, people with disabilities, and communities of color, all of whom have made significant gains under the law’s passage. The administration’s hopes of success now appear to be bolstered by the opportunity for President Donald Trump to place a third appointee on the nation’s highest court.
The rush to confirm Judge Amy Coney Barrett—who has a long history of opposing major Supreme Court decisions upholding the law and other critical civil rights protections—has only heightened the risk of the nation’s most sweeping health care reform in modern history being dismantled during the devastating COVID-19 pandemic. This would jeopardize the health care of more than 20 million Americans and the protections of the 135 million Americans with preexisting conditions.
Original analysis of new, nationally representative data from the Center for American Progress sheds light on what progress has been made under the ACA to increase affordability, cover preexisting conditions, and ensure nondiscrimination protections, as well as the depth of harm that LGBTQ people would suffer under the law’s repeal.*
LGBTQ people cannot afford to reverse the progress made under the ACA
The ACA includes three critical components that have resulted in significant health care gains for LGBTQ people:
- The expansion of Medicaid and introduction of tax credits for private plans through the marketplaces
- Protections for people with preexisting conditions
- Nondiscrimination protections on the basis of sexual orientation and gender identity
These provisions are essential to ensuring greater access to affordable health insurance for LGBTQ people, who endure disparate negative health outcomes linked to stigma and discrimination that adversely affect their physical, psychological, and financial well-being.
Increased coverage and affordability
The ACA has been instrumental in making health insurance more affordable by expanding low-income households’ eligibility for no- or low-cost public health insurance coverage through Medicaid and by directly subsidizing private coverage purchased by low- and middle-income individuals through the health insurance marketplaces. The high prevalence of poverty among LGBTQ communities—particularly transgender people and LGBTQ people of color due to transphobia and systemic racism—make both pathways to coverage essential to support the health and well-being of LGBTQ people.
In 2013, before the ACA went into effect, 34 percent of LGBTQ individuals making less than $45,000 a year were uninsured. However, this number has dropped steadily each year in the wake of the ACA’s coverage expansions, decreasing to 26 percent in 2014, 22 percent in 2017, and, based on nationally representative survey data collected by CAP, 16 percent as of June 2020—indicating that the rate of uninsured LGBTQ people making less than $45,000 per year has halved since the ACA went into effect.
These significant improvements can largely be attributed to an increase in the number of LGBTQ people who access coverage through Medicaid or the marketplaces. As of this year, 18 percent of LGBTQ people have insurance through Medicaid, with 28 percent reporting that in the past month they, their partner, or their child had received some type of help from Medicaid. An additional 8 percent have insurance purchased through HealthCare.gov or a state marketplace.
The positive impact of Medicaid expansion is clear when comparing insurance rates among those in states that have adopted the expansion as of January 2020 with those in states that have failed to do so. (see Figure 1) According to CAP’s original survey conducted in June 2020, in states that expanded Medicaid, just 8 percent of LGBTQ adults are uninsured and 20 percent have coverage through Medicaid.** In states that have not expanded Medicaid, the rate of LGBTQ adults who are uninsured is 20 percent, with just 13 percent of respondents being covered through Medicaid. Impacts are most prominent for LGBTQ adults making less than $45,000 a year. In states with the expansion, 11 percent of these individuals are uninsured and 38 percent have Medicaid coverage—in contrast to states without the expansion, where 28 percent are uninsured and just 23 percent have Medicaid coverage. Based on these findings, it is apparent that states that adopted expansion are providing low-income LGBTQ people with better access to affordable insurance, which can make a meaningful difference to their health and well-being. Repeal of the ACA would end the law’s Medicaid expansion and financial assistance for private coverage through the marketplaces. Based on its survey data, CAP estimates that nearly 2 million LGBTQ people are covered through Medicaid and nearly 900,000 LGBTQ people are covered through the health insurance marketplaces.***
Figure 1
Even with higher rates of coverage compared with before the ACA, LGBTQ people face immense difficulties accessing affordable health care. (see Figure 2) Twenty-nine percent reported postponing or not seeking out necessary medical care when sick or injured because of the cost, while 24 percent reported postponing or not receiving preventative screenings due to cost.
Yet the ACA lawsuit threatens to undo years of progress and push millions of LGBTQ people off of their insurance through losing access or prohibitively high costs, all without a Trump administration strategy to provide alternative options, creating significant barriers to quality, affordable health care.
Figure 2
Coverage of preexisting conditions
The ACA also prohibits discrimination based on preexisting conditions, meaning that insurers in the individual market cannot charge higher premiums, deny coverage, or limit benefits for preexisting health conditions such as asthma, diabetes, heart disease, cancer, and HIV. The ACA’s protections have benefited many Americans who previously faced obstacles to comprehensive health insurance because of their medical history. Indeed, as of 2017, 51 percent of U.S. adults and an estimated 65 percent of LGBTQ adults had a preexisting condition. Nationally representative data from CAP reveal that, in 2020, only 6 percent of LGBTQ people reported having trouble attaining insurance coverage due to a preexisting condition—mainly thanks to the ACA.
Eliminating these protections would lead to millions of Americans with preexisting conditions—including many LGBTQ individuals with disabilities and chronic health conditions—being denied coverage and facing substantial increases in out-of-pocket costs if they ever had to buy insurance on their own. Consequences would be especially grave for the more than 7.5 million people in the United States diagnosed with COVID-19, which would likely be considered a preexisting condition if the ACA were repealed. This would deeply impact communities of color, whose health and economic stability have been disproportionately affected by the pandemic due to intergenerational systemic racism and social determinants of health, as well as LGBTQ people more broadly, who are at increased risk of severe effects from COVID-19.
Nondiscrimination protections
The ACA established and implemented broad-based nondiscrimination protections for LGBTQ people. This includes regulations for Section 1557 of the ACA—the law’s primary civil rights provision—which prohibits discrimination based on sexual orientation and gender identity in the U.S. Department of Health and Human Services marketplace plans and any health plans offering the ACA’s essential health benefits. Moreover, Section 1557 also protects LGBTQ people by banning discrimination based on sex and sex stereotypes in any health program receiving federal funds, including Medicaid, Medicare, and marketplace providers.
Despite attempts by the Trump administration to rescind these Section 1557 protections, courts have affirmed that the statute prohibits gender identity discrimination; and the recent landmark decision in Bostock v. Clayton County provides clear guidance indicating that sexual orientation and gender identity discrimination is more broadly prohibited.
These protections are critical for LGBTQ people, who, according to the latest nationally representative data from CAP, often postpone or avoid medical care due to experiences of discrimination. (see Figure 3) In fact, among LGBTQ people who have experienced discrimination in the past year, 36 percent avoided doctor’s offices out of fear of experiencing further discrimination by a health provider.
Figure 3
Absent the robust discrimination protections established by the ACA, all members of the LGBTQ community would lose the opportunity for legal recourse when encountering harmful discriminatory experiences, with consequences being particularly grave for transgender people. Although the ACA made it illegal to consider a prior diagnosis of gender dysphoria or gender identity disorder to be a preexisting condition and prohibited insurers from outright excluding or placing discriminatory restrictions on transition-related care, transgender individuals continue to face unique discriminatory barriers to accessing health insurance. (see Figure 4)
Figure 4
Conclusion
Looking ahead, a range of outcomes for the case are possible, with the most detrimental and far-reaching ramifications for LGBTQ people occurring if the Supreme Court overturns the ACA—as the U.S. Department of Justice and Republican attorneys general argue. LGBTQ people who benefited from the ACA’s policies to increase affordability, cover preexisting conditions, and ensure nondiscrimination protections cannot afford to reverse the substantial progress made under the law, particularly as a pandemic surges across the nation.
The gains made by LGBTQ people under the ACA now rest in the hands of the Supreme Court. This is a dangerous prospect given that President Trump’s nominee boasts a strong public record of opposing the ACA, access to reproductive health, and LGBTQ rights, including her defense of dissenters in the Supreme Court’s marriage equality ruling and skepticism about extending Title IX protections to transgender students. Rather than arguing for the repeal of the ACA and rushing through a Supreme Court nomination, the Trump administration should be focused on taking action to bolster the health and financial stability of Americans living through an unprecedented crisis.
Caroline Medina is a policy analyst for the LGBTQ Research and Communications Project at the Center for American Progress. Lindsay Mahowald is a research assistant with the LGBTQ Research and Communications Project at the Center.
*Authors’ note: Data are from a nationally representative survey of 1,528 LGBTQ+ identifying individuals, jointly conducted in June 2020 by the Center for American Progress and NORC at the University of Chicago.
**Authors’ note: The Kaiser Family Foundation has a map—last updated on October 1, 2020—showing Medicaid expansion status in each U.S. state. This map has three categories: 1) states that have adopted the expansion and already implemented it; 2) states that have adopted the expansion and have not implemented yet; and 3) states that have not yet adopted the expansion. The states that have adopted but not yet implemented the expansion—Oklahoma and Missouri—are counted with the states that have not implemented expansion, as there has been insufficient time for the expansion to affect the insurance rates of individuals in those states. Nebraska, which implemented the expansion in October 2020, is also included in this category, as CAP’s survey was conducted in June 2020. All states in the expansion category had at least six months under the expansion prior to the June survey—so while the survey statistics are static and do not account for variations in when state expansions occurred, they are a useful approximation of the differences between states with and without increased Medicaid access.
***Authors’ note: These statistics were calculated using the percentage of LGBTQ survey respondents who reported health insurance coverage through Medicaid (18 percent) and the ACA marketplace (8 percent), multiplied by the estimated number of LGBTQ Americans by state in the United States as estimated by the Williams Institute in 2020—which, when aggregated, shows more than 11 million adult Americans identifying as LGBTQ.