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The Department of Health and Human Services is reportedly close to finalizing a rule that would gut protections against anti-transgender and sex discrimination in the Affordable Care Act.
The rule governs the enforcement of Section 1557 of the ACA. Section 1557, also known as the Health Care Rights Law, prohibits sex discrimination in health care, and a regulation issued by President Barack Obama's administration in 2016 clarified that sex discrimination includes anti-trans discrimination. It also said the definition included discrimination against women who have had abortions.
The new rule being prepared by Donald Trump's administration would define sex discrimination more narrowly, excluding anti-trans discrimination. HHS released a proposed version of the rule last May, and a period of public comment on it followed. Now HHS is expected to release the final rule within days, Politico reports.
The final rule was sent to the Justice Department Thursday, sources told Politico, and that's a step toward public release. The White House has also "updated a regulatory dashboard to indicate that the rule was under review," the publication reports.
Even with the rule being finalized, Section 1557 would remain a part of the law, but the federal government would do nothing to enforce it -- under Trump, it isn't doing so now either. Also, the section has been subject to lawsuits and court rulings that further complicate its enforcement, with one federal judge in Texas having ruled it invalid. But civil rights groups still encourage anyone who believes they've suffered illegal discrimination to go to court against the responsible party, be it their insurer or health care provider.
HHS officials have not responded to an Advocate request for comment, and they had little to say to Politico, just this statement: "A federal court has vacated the gender identity provisions of the regulation and we are abiding by that court order. We do not comment on the rulemaking process and refer you to recent public filings made by the Department of Justice before the Supreme Court on what constitutes sex discrimination under civil rights laws."
In employment discrimination cases before the Supreme Court, the Justice Department has argued that sex discrimination under those laws doesn't include anti-LGBTQ discrimination; rulings in those cases are expected soon. Those rulings could affect health care laws as well.
LGBTQ rights activists are sounding the alarm about the expected final health care rule. "News flash Mr. President -- we get sick, we need health care and we should be protected under law," Human Rights Campaign President Alphonso David said in a blog post. "Time after time, the Trump-Pence administration has methodically worked to undermine the rights and welfare of LGBTQ people by rolling back existing protections. Amid a global pandemic -- which is already disproportionately affecting LGBTQ people -- the Trump administration's efforts to remove existing nondiscrimination protections for the LGBTQ community is unacceptable, blatantly offensive, and cruel. We cannot accept an administration that continues to treat us like second class citizens. We will fight this policy and fight to get a pro-equality president into office this November who represents all of us."
The Democratic National Committee also DNC released a statement condemning the administration's action. "In the middle of a global pandemic, when we need more testing, more treatment, and broader access to health care, Trump is threatening the lives of LGBTQ Americans," said DNC LGBTQ Media Director Michael Kikukawa. "This is not the first time Trump and the Republican Party have attacked the rights of the LGBTQ community, and it won't be the last, but cutting access to health care for some of our nation's most vulnerable when they need it most is intolerably cruel."
In health care alone, the administration's other moves toward anti-LGBTQ discrimination include a rule allowing providers to deny care that offends their religious beliefs, no matter how marginal a provider's involvement in the care; it has been struck down by several federal courts. It also has created an office within HHS where health care workers can file complaints about participating in procedures that run counter to their beliefs (again, even if their involvement is marginal) and is allowing anti-LGBTQ discrimination by entities that receive HHS grants, contrary to an Obama administration policy.