On Friday, the Trump administration published proposed changes to a portion of the Affordable Care Act in the Federal Register.
The section in question, Section 1557, prohibits discrimination in insurance coverage and the provision of health care based on a person’s gender identity.
Trump administration officials — particularly Roger Severino, the head of the Department of Health and Human Services’ Office for Civil Rights — have long argued that the interpretation of “sex” embraced by the Obama administration oversteps its authority by extending nondiscrimination protections to the transgender community that do not exist in current federal civil rights law.
The proposed change would eliminate protections for LGBTQ people in health care programs and activities by explicitly defining Section 1557’s prohibition on sex-based discrimination as only pertaining to instances where someone is discriminated against because of their biological sex.
The Human Rights Campaign slammed the Trump administration for once again trying to undermine nondiscrimination protections for LGBTQ people.
“This administration has attempted time and time again to strip LGBTQ people of necessary and appropriate health care solely based on their sexual orientation or gender identity,” David Stacy, HRC’s director of government affairs, said in a statement. “Everyone deserves access to medically necessary care and should never be turned away because of who they are or who they love.”
One of the justifications for HHS’s proposed change is that multiple lawsuits have been filed by social conservatives challenging the Obama administration’s interpretation of Section 1557 as prohibiting discrimination in health care based on gender identity, sex stereotyping, or a person’s decision to terminate a pregnancy.
HHS hopes to avoid future lawsuits by clarifying the extent to which the law prohibits discrimination against certain classes of people.
Another justification for the change is cost savings. HHS estimates that clarifying the rule would save approximately $3.6 billion over the first five years after it is finalized.
The projected savings would largely come from repealing provisions related to mandatory notices informing health care consumers of their rights, according to HHS’s summary of the rule.
LGBTQ advocates argue that changing the interpretation of Section 1557 will make it easier to justify discrimination against transgender people, leading patients to forego health care.
By avoiding care, transgender people put themselves at greater risk of health problems or complications stemming from existing conditions that go untreated for large portions of time.
According to the 2015 U.S. Transgender Survey, 23% of transgender respondents said they avoided seeing a doctor because of the fear of being mistreated, and 55% of those seeking coverage for transition-related surgery were denied.
Additional studies show that 56% of LGB people and 70% of transgender and gender-nonconforming people reported experiencing discrimination at the hands of health care providers.
Following its publication in the Federal Register on June 14, the proposed HHS rule entered a 60-day public comment period, during which the public has a chance to weigh in on the proposed changes before they take effect. The comment period ends on Aug. 13.
Gillian Branstetter, media relations manager for the National Center for Transgender Equality, said the organization is urging anyone who opposes the change to offer their comments within the next 57 days.
“The kinds of stories we think would be really impactful would be stories of discrimination against transgender people,” Branstetter told Metro Weekly in an interview. “We urge family members, parents, or caregivers to share those stories as well. This can include anything from being mistreated by a doctor, to being continually misgendered, to being subjected to inappropriate or unnecessary questions, right up to being denied service by a provider who does not want to treat transgender people.”
Other groups encouraged to comment are medical providers who can attest that the change is not in the interest of furthering public health or improving access to health care, as well as any citizen who is offended by the inherent unfairness of rolling back transgender protections.
“Most Americans would agree that doctors and hospitals should not be picking and choosing who they get to treat,” Branstetter added. “In their public comments, it’s good for people to speak from their heart about why that is important to them and why it’s a matter or morality and humanity.”
Branstetter noted that the NCTE-sponsored website ProtectTransHealth.org received 15,000 comments from people blasting the rule from the time HHS’s plans to introduce it were first announced on May 24, even before the public comment period opened.
She also pushed back against the Trump administration’s justifications for the rule, including the argument that it is necessary to avoid lawsuits.
“The legal precedent around Section 1557 and sex nondiscrimination laws overall is very clear,” Branstetter said. “Transgender people are protected by these laws, as most federal courts have read them, over the past two decades.”
She noted that there have been several cases in which courts have recognized that transgender people are protected by laws prohibiting sex-based discrimination.
In one such case, a federal judge in California found that a San Diego children’s hospital had discriminated against 15-year-old Kyler Prescott, a transgender teen who was frequently misgendered by staff who refused to acknowledge his gender identity while he was hospitalized for depression. Prescott later committed suicide after being released.
Branstetter said that some opponents of transgender rights have been emboldened by a ruling by a federal judge in Texas who ruled that HHS had overstepped its authority when it adopted the Obama-era interpretation of Section 1557’s nondiscrimination protections.
“This is the same judge who has previously argued that trans students have no protections under the law and that entire Affordable Care Act is unconstitutional,” Branstetter added. “There are few legal experts and scholars in the country who do not understand that that is an extreme position well outside the bounds of mainstream legal thought on this law.”
She expressed skepticism about the law’s alleged financial burdens.
“As I understand it, the Trump administration has been slashing the budget for enforcing existing civil rights law across several departments,” Branstetter said. “If the budget that [the Office for Civil Rights] is allotted is not used for enforcing civil rights and fighting discrimination in health care, what is it being used for?”
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