The Department of Health and Human Services filed documents in court today indicating that it's backing away from a trans-inclusive nondiscrimination rule applying to the Affordable Care Act.
In December, a federal judge in Texas blocked HHS "from enforcing the Rule's prohibition against discrimination on the basis of gender identity or termination of pregnancy," today's court filing notes. In the filing, HHS asks for time to reconsider the rule, saying its reconsideration may render moot the lawsuit challenging it. HHS has no problem with the rule remaining on hold while the agency reviews it, says the document, filed in U.S. District Court for the Northern District of Texas.
The lawsuit, Franciscan Alliance v. Burwell, was filed last August by five states and a group of religiously affiliated health care providers (Sylvia Matthews Burwell being the HHS secretary at the time; she has now been succeeded by Trump appointee Tom Price). Under Price, HHS decided not to appeal the preliminary injunction blocking the rule's enforcement, and now the department appears poised to scrap it.
The rule applies to the implementation of the Affordable Care Act's Section 1557, which bans discrimination based on race, sex, and several other factors by health care providers that receive federal funds, which almost all of them do. During the Obama administration, HHS regulators, deciding how to apply Section 1557, held that this includes discrimination based on gender identity, plus discrimination in reproductive health care.
"The Section 1557 regulation has been literally lifesaving for transgender people all across the country, who are routinely turned away from emergency rooms and doctors' offices and refused coverage for critical medical care," said Mara Keisling, executive director of the National Center for Transgender Equality, in a press release. "Now the Trump administration is going after transgender people yet again and trying to take away these basic protections. The administration is rejecting the views of every major medical association, most courts, and most Americans, who believe that people should not be denied health care because of who they are. That's not just bad science and bad law -- it's a dangerous attack on transgender people's ability to survive."
While the temporary injunction prevents HHS from enforcing bans on discrimination based on gender identity and reproductive care, Section 1557 and its ban on sex discrimination remain in place. Other judges have ruled that various federal bans on sex discrimination apply to discrimination based on gender identity, Keisling pointed out. So trans people who have suffered discrimination can and should file suit, she said.
Today's action by HHS, however, creates confusion about what Section 1557 requires, places a heavy burden on trans people, and essentially tells them that the federal government does not care about their health and well-being, NCTE noted.