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Trump administration poised to rewrite Obamacare, without LGBTQ protections

HHS has long prioritized excluding transgender people from health care nondiscrimination protections

trump, obamacare, lgbtq, protection
Photo: Sarah Stierch

The Trump administration is poised to issue a rewrite of a section of the Affordable Care Act that protected LGBTQ individuals from insurance discrimination.

The U.S. Department of Health and Human Services is close to finalizing its proposed rewrite of Section 1557 of the Affordable Care Act, which, under the Obama administration, was interpreted to prohibit discrimination against transgender individuals, whom LGBTQ advocates and health care experts say were being turned away when seeking care. The provision also extended protections available to women who had undergone abortions.

Religious organizations and conservative interest groups objected to the Obama-era rule, arguing it violated their religious liberty. Several sued in court, resulting in a federal judge in Texas blocking those protections from being enforced in 2016, and overturning the provision entirely in 2019 by finding the section overly burdened the religious beliefs of Christian medical providers.

Last Thursday, the final rule was circulated at the U.S. Department of Justice, a step toward publicly releasing the regulation in the coming days, two sources with knowledge of the rule told Politico.

The Trump administration — and notably, Roger Severino, the head of HHS’s Office for Civil Rights — has long objected to the Obama-era interpretation of the statute, and has been working for the last few years to rewrite Section 1557.

Under the proposed rewrite, a version of which was made public last year, language would be added to explicitly state that the ACA’s prohibitions on sex-based discrimination only pertain to instances where someone is discriminated against because of their assigned sex at birth. As part of that revision, HHS also proposed changes that sought to eliminate LGBTQ protections in other federal regulations.

“If the final rule is anything like the proposed rule, HHS is adopting changes that would be harmful in the best of times but that are especially cruel in the midst of a global pandemic that is disproportionately affecting vulnerable communities and exacerbating disparities,” Katie Keith, a lawyer and Georgetown professor who’s tracked the rule, told Politico.

HHS declined to comment on the possibility of a pending rule. But a Trump administration official pushed back against assertions that the administration was stripping away LGBTQ protections, noting the federal court’s decision to overturn the gender identity provision.

“A federal court has vacated the gender identity provisions of the regulation and we are abiding by that court order,” the spokesperson said. “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.”

See also: Federal court rules Alaska’s denial of health care to transgender woman is unlawful discrimination

Severino released his own statement defending his office’s approach to the issue.

“As we have shown in our recent efforts to protect persons from disability and age discrimination during the pandemic, HHS will vigorously enforce civil rights laws as passed by Congress, before, during, and after any rulemaking,” Severino said. He noted that the Obama administration had “declined to recognize sexual orientation as a protected category under Obamacare, and HHS proposed to leave that judgment undisturbed” in last year’s proposed rule.

The rewrite could also potentially be affected by a pending decision from the U.S. Supreme Court regarding the extent to which LGBTQ people are protected by Title VII, a nondiscrimination law explicitly mentioned in the original version of Section 1557.

In the possible, but unlikely, event that the court sides with LGBTQ advocates, it could force health officials to rework their revision of Section 1557 to conform to the court’s rulings.

The Human Rights Campaign balked at the Politico report, and blasted the Trump administration for seeking to weaken what few LGBTQ protections exist in law.

“News flash Mr. President — we get sick, we need health care and we should be protected under law,” HRC President Alphonso David said in a statement. “Time after time, the Trump-Pence administration has methodically worked to undermine the rights and welfare of LGBTQ people by rolling back existing protections.

Roger Severino, head of HHS’s Office for Civil Rights – Photo: The Heritage Foundation.

“Amid a global pandemic — which is already disproportionately affecting LGBTQ people — the Trump administration’s efforts to remove existing non-discrimination protections for the LGBTQ community is unacceptable, blatantly offensive, and cruel,” David added. “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.”

Two dozen Democratic attorneys general have sent a letter to HHS urging it not to finalize the proposed regulation, arguing that the proposal will place “unnecessary burdens” on healthcare providers and state health agencies, thus distracting them from devoting “all resources to pandemic response and recovery efforts.”

The attorneys general also argued that the rule is discriminatory and could result in some marginalized populations foregoing or being denied care.

“In finalizing this Rule, HHS risks aiding the spread of the disease across the country, to the detriment of our citizens and our economy,” the letter to HHS reads.

The Congressional LGBTQ+ Equality Caucus denounced Trump administration efforts to strip away nondiscrimination protections for the LGBTQ people, who suffer disproportionately from health disparities and may be reticent to seek care because of fears of discrimination. The caucus also called on congressional leaders to put language explicitly prohibiting discrimination in any future legislation to deal with the ongoing pandemic.

See also: Federal judge rejects North Carolina’s request to dismiss transgender health care lawsuit

“It is outrageous that the Administration would take this action right now while we are in the midst of a pandemic that has already killed more than 55,000 Americans. The Administration should reverse course and as Congress works on solutions to address the effects of the COVID-19 pandemic, we must ensure that no one gets left behind,” Caucus Co-Chair Rep. Mark Takano (D-Calif.) said in a statement. “The systemic attacks against the LGBTQ+ community by the Trump Administration have very real consequences that could restrict our community’s access to the help and support they need.”

“This administration is built on a founding principle of codifying inequality and hate into law,” Co-Chair Rep. Mark Pocan (D-Wis.) added. “During this pandemic that means the most vulnerable populations — including LGBTQ people — are most likely to feel the effects of an inequitable healthcare system and housing instability. No federal money should go to any groups or organizations discriminating based on sexual orientation and gender identity — period.”

House Speaker Nancy Pelosi (D-Calif.) later weighed in, blasting the Trump administration’s proposed rule as “shameful” and “shocking.”

“Religious freedom is no justification for hatred or bigotry, and every American has the right to seek and receive care without intimidation or fear,” Pelosi said in a statement. “The Administration must immediately abandon this outrageous, un-American plan and give LGBTQ individuals the reassurance that they will never be denied the health care they or their families need.”

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