A new rule expected soon from the Department of Health and Human Services would undermine protections for transgender people regarding discrimination in health care.
The rule deals with enforcement of Section 1557 of the Affordable Care Act. 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.
Now Donald Trump’s administration is poised to issue a rule undoing the 2016 regulation. Several states and organizations have sued to block it, and in a court filing in that case, the administration has indicated it will soon publish the rule, which is then subject to a public comment before it becomes final, according to the National Center for Transgender Equality.
Even after the rule becomes final, anti-trans discrimination in health care will still be illegal, as Section 1557 is a federal law. But the administration won’t do anything to enforce the law, and it isn’t doing so now, according to NCTE’s fact sheet on the issue.
The proposed rule is “likely to send an even stronger signal that the administration endorses discrimination in health care against transgender people,” Harper Jean Tobin, NCTE director of policy, told The Hill. It “won’t mean that overnight transgender people can’t get health care, but it will be a steady drip of allowing more discrimination,” she added. NCTE continues to encourage people who have suffered discrimination to file lawsuits.
And the American Civil Liberties Union plans to sue if the rule turns out as expected, Chase Strangio, an attorney with the ACLU’s LGBT & HIV Project, told The Hill. “If the final rule looks like the proposal we are anticipating, we and our partners will file suit as soon as possible,” he said. “We can expect many legal challenges to any final rule.”
Tobin noted that the proposal is a continuation of anti-trans attacks by the Trump administration. “At a time when the administration is trying to overturn the entire Affordable Care Act, at a time when the transgender ban in military is taking effect, transgender people are scared for their ability to get the health care they need, and that their providers know they need,” she said.
The regulation governing Section 1557 is separate from another discriminatory rule being prepared by HHS. That one would allow health care providers to refuse to participate in any procedure that offends their religious beliefs, no matter how marginal their participation is. It stands to affect LGBTQ people, women seeking reproductive health care, and more. The rule was formulated and released for public comment last year, and final language is expected to be released soon.