A federal judge Tuesday struck down the portion of the Affordable Care Act that forbids anti-transgender discrimination in health care, a decision that is likely to be appealed, meaning the provision will stand while the court process continues.
The provision, Section 1557, also bars insurers and health care providers from discriminating on the basis of sex or of a patient’s previous pregnancy termination. But U.S. District Judge Reed O’Connor in the Northern District of Texas ruled that Section 1557 interferes with providers’ religious freedom and therefore violates the federal Religious Freedom Restoration Act, The Hill reports.
A lawsuit challenging the rule came from five conservative states and the Franciscan Alliance, a group of Christian health care providers. They sued in 2016, when Barack Obama, who signed the ACA into law, was still president, and his administration defended Section 1557. But when Donald Trump became president, his administration withdrew defense of the provision. Two private nonprofit groups, River City Gender Alliance and the American Civil Liberties Union of Texas, stepped in to defend it in the absence of the federal government’s advocacy. The Trump administration has also proposed revising the section to exclude the ban on discrimination based on gender identity.
O’Connor had earlier issued a nationwide injunction against enforcement of the section, meaning it was still part of the law, but the federal government could not sue a health care provider for discrimination. An appeal of his ruling today would keep the section intact for now, but the federal government would still not enforce it. Last year, in a separate case, O’Connor found the entire ACA unconstitutional, but the law still stands and makes health insurance available, as that ruling is being appealed.
His ruling today is far from the last word on Section 1557, transgender rights activists pointed out. "The ruling firmly places Judge O'Connor's court and the Trump administration on the fringe of the legal establishment, particularly when combined with his odd ruling against the entire Affordable Care Act," Gillian Branstetter, media relations manager for the National Center for Transgender Equality, told The Advocate. "The ruling does not, however, change the fact that transgender people remain covered under Section 1557 — as read by literally every other federal court — nor does it erase the tens of thousands of comments defending the 2016 rule on both moral, legal, and public health grounds. We remain determined to defend the right of every patient to fair and equitable treatment by providers and insurers regardless of who they are or who they love."
Branstetter also pointed out that regardless of the Trump administration's lack of enforcement, "anyone can still challenge a denial of care by a provider or denial of coverage from an insurer under Section 1557." Trans people are still challenging insurers and providers in court as we speak and, as the progress in the Evan Minton case in California shows, they are still winning." A state appeals court recently affirmed Minton's right to have his lawsuit over the denial of his hysterectomy heard, reversing a lower court's dismissal of the case.
"State AGs and governors are still securing settlements from insurance carriers under Section 1557 as the case of EmblemHealth in New York shows," Branstetter added. EmblemHealth was fined by the state last year for insufficient coverage of gender-confirmation surgeries and directed to cover them in the future. "Any trans person who experiences discrimination in a health care setting can and should seek legal recourse and — in any court but Judge O'Connor's — they should expect to win."
This story is developing. Check back for updates.