The U.S. Department of Health and Human Services Friday announced changes to the Affordable Care Act that reverse protections for transgender people added by President Barack Obama's administration in 2016. The Obama-era rule governing enforcement of Section 1557 of the ACA had defined gender as “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.” Today’s announcement signaled a return to the original text of the law.
“Today’s rule attempts to gut the robust nondiscrimination protections under the Health Care Rights Law, Section 1557 of the Affordable Care Act (ACA),” Winnie Stachelberg, executive vice president for external affairs at the Center for American Progress, said in a written statement. “This move by the administration to undermine anti-discrimination protections in health care for LGBTQ people, women, people with limited English proficiency, people with disabilities, and others, including those who face multiple forms of discrimination, is unconscionable at any time.”
Section 1557 of the ACA made it illegal to discriminate due to “race, color, national origin, sex, age or disability in certain health programs and activities." The Obama administration had sought to strengthen those protections with the refined definition, but was met with immediate opposition in the courts, which ultimately agreed with the Trump administration’s interpretation of the law. The current administration had issued a proposed rule changing that interpretation in May 2019, and today's move finalizes that rule. When presidential administrations make rules affecting enforcement of laws, the proposed rule goes through a period of public comment before it is finalized, but the rulemaking process does not require congressional action.
The new language also removes antidiscrimination protections for the groups of people Stachelberg noted, and allows for wide-ranging exemptions from providing services related to abortion if health care workers have faith-based objections. The Obama administration's rule also could be used to address discrimination based on sexual orientation if it was rooted in sex stereotyping — for instance, denial of fertility services to a female couple because a provider believes only opposite-sex couples should be parents.
“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 Office for Civil Rights at HHS, said in a statement announcing the decision. “We are unwavering in our commitment to enforcing civil rights in healthcare.” Severino, by the way, has a long history of bigotry against LGBTQ+ people, along with a record of opposition to women's rights.
Experts were quick to express concern, though.
Lynn Dawson, associate director of HIV policy at the Kaiser Family Foundation, told NPR that changes will be felt beyond basic health care issues. She says insurance companies might be able to raise premium prices for LGBTQ+ people, and trans patients might find limited remedies through the legal system.
"Because of limited access to litigation, I think that it's fair to state that the ramifications [of this rule] could be pretty significant," she lamented.
Several LGBTQ+ groups, other civil rights groups, and medical organizations issued statements condemning the administration's action, and the Human Rights Campaign plans to sue over it.
“We cannot and will not allow Donald Trump to continue attacking us. Today, the Human Rights Campaign is announcing plans to sue the Trump administration for exceeding their legal authority and attempting to remove basic health care protections from vulnerable communities including LGBTQ people. And, to add insult to injury, the administration finalized this rule on the anniversary of the Pulse shooting, where a gunman killed 49 people in an LGBTQ nightclub,” said HRC President Alphonso David. “LGBTQ people get sick. LGBTQ people need health care. LGBTQ people should not live in fear that they cannot get the care they need simply because of who they are. It is clear that this administration does not believe that LGBTQ people, or other marginalized communities, deserve equality under the law. But we have a reality check for them: we will not let this attack on our basic right to be free from discrimination in health care go unchallenged. We will see them in court, and continue to challenge all of our elected officials to rise up against this blatant attempt to erode critical protections people need and sanction discrimination.”
A lawsuit already filed will test the rule, according to GLBTQ Legal Advocates and Defenders. Its suit, Pangborn v. Ascend, was filed in January in federal court in Massachusetts. GLAD is representing Alexander Pangborn, a transgender man who was denied gender-affirming care under his employer's health insurance plan.
“Alexander Pangborn is a hospice nurse who provides compassionate care every day to his patients and their families, yet he was denied access to the health care he himself needs,” said Chris Erchull, the GLAD staff attorney representing Pangborn, in a press release. “The purpose of the ACA is to ensure Americans have access to healthcare. The purpose and the legal meaning of the nondiscrimination protections in Section 1557 are to ensure that individuals like Alexander are not denied care because of anti-transgender prejudice or other bias. The Trump administration's repudiation of those protections is both cruel and unjust. It will not hold up in court.”
Numerous other organizations weighed in.
“Trans people should be able to seek medical care when we need help without being turned away or denied treatment because of who we are,” said Kris Hayashi, executive director of the Transgender Law Center. “This appalling move by the Trump administration puts the lives of trans people in jeopardy — especially trans people living with HIV, Black trans people and trans people of color, trans people with disabilities, and trans people living in rural areas and in Southern states.”
“Even as the death toll and catastrophe of the COVID-19 pandemic grows and people take to the streets, the Trump administration remains focused on denying equal access to health care to transgender people,” said Mara Keisling, executive director of the National Center for Transgender Equality. “The Trump administration has waged a nonstop campaign against transgender people, taking every opportunity to deny us the ability to live our lives as who we are. The new rules released today are hateful and cruel, and will keep people from being able to get the care they need to live happy, healthy, and productive lives.”
“It is particularly brazen of Secretary of Health and Human Services Alex Azar and the President to undermine health care access at a time when the nation is confronted by the coronavirus,” said Andy Marra, Executive Director of the Transgender Legal Defense & Education Fund. “Today’s published rule demonstrates this administration would rather promote discrimination in health care than deliver a comprehensive and evidence-based response to the pandemic. We look forward to challenging these reckless regulations alongside our partners to ensure trans protections remain intact.”
“Respect for the diversity of patients is a fundamental value of the medical profession and is reflected in long-standing AMA policy opposing discrimination based on race, gender, sexual orientation, gender identity or a woman's decisions about pregnancy, including termination," said Susan R. Bailey, president of the American Medical Association. “The federal government should never make it more difficult for individuals to access health care — during a pandemic or any other time."