In June, the Trump administration issued regulation reversing an Obama-era rule that established nondiscrimination protections for LGBTQ patients under Section 1557 of the Affordable Care Act (ACA). Under the new rule, the government interprets sex discrimination based on the plain meaning of “sex” as male or female and as determined by biology, according to the U.S. Department of Health and Human Services (HHS). The agency argued that the new rule restores the civil rights provision in the ACA to not go beyond the “plain meaning of the law.”
Under the Obama administration’s rule, “sex discrimination” was broadened to include discrimination based on “gender identity” — defined as “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female” — as well as “termination of pregnancy.”
In spite of its rollback, HHS said it will continue to enforce laws prohibiting discrimination on the basis of race, color, national origin, disability, age and sex as it had done throughout the COVID-19 pandemic. “HHS respects the dignity of every human being, and as we have shown in our response to the pandemic, we vigorously protect and enforce the civil rights of all to the fullest extent permitted by our laws as passed by Congress,” Roger Severino, director of the agency’s Office for Civil Rights, said in a statement.
The agency added that the new rule retains some of the 2016 policy’s expanded protections, including a provision to ensure access to health care facilities and services for people with disabilities as well as access to language services for non-English speakers. HHS also argued that the revision to the ACA’s anti-discrimination provision will save $2.9 billion over five years in “unnecessary regulatory burdens” in the form of mandated multilingual notices.
Proponents of the move argued that it helps to protect health care providers from making difficult decisions that go against their values. “Sex is not subjective, it is an objective biological reality,” Tony Perkins, president of the Family Research Council, said in a statement. He added that gender transition services and procedures are not wholly embraced in the medical community because of the potential for negative effects, including patients receiving incorrect medications or dosages if doctors are unaware of the patient’s biology. “The rule proposed today helps protect health care providers from being forced to participate in and perform services that substantially violate their consciences,” Perkins said.
Other conservative-leaning religious and pro-life groups spoke out in favor of the new rule. “President Trump is the most pro-life president our nation has ever seen, and today he delivered another important victory for conscience in America,” said Marjorie Dannenfelser, president of the Susan B. Anthony List, in a statement.
Opponents of the rollback, however, argued that the new rule could restrict health care access among vulnerable populations, specifically LGBTQ patients, women and individuals with limited English proficiency. In fact, attorneys general from 23 states filed a lawsuit against the Trump administration, arguing that the new rule strips protections for these populations and is an especially egregious act given the ongoing coronavirus pandemic.
“Despite failing to repeal the ACA again and again, President Trump and his administration continue to unlawfully chip away at health care for Americans,” said New York State Attorney General Letitia James, who spearheaded the lawsuit. “For more than a decade, the ACA has provided tens of millions of Americans with quality, affordable health coverage, which is why we will use every tool at our disposal to stop the Trump administration from taking us backwards.”
Meanwhile, Washington state’s Attorney General Bob Ferguson also filed a lawsuit against the Trump administration and cited the U.S. Supreme Court’s ruling in the June 2020 Bostock v. Clayton County, Georgia case that “discrimination on the basis of sexual orientation or transgender status is unlawful discrimination because of sex.”
Before the new HHS rule was scheduled to take effect in August, a U.S. district judge temporarily blocked it, ruling that it would violate the Supreme Court’s June decision. “The court concludes that the proposed rules are, indeed, contrary to Bostock and, in addition, that HHS did act arbitrarily and capriciously in enacting them,” Judge Frederic Block stated in his ruling, which will allow a lawsuit brought by two transgender women to progress. Block’s ruling is not final, however, and a final decision in the case is subject to appeal.
For more background, see the March 2016 issue of Congressional Digest on “Obamacare Update.”
