The Trump administration has issued a finalized rule that rolls back nondiscrimination protections in the Affordable Care Act for transgender people.
Specifically, the U.S. Department of Health and Human Services rule redefines the ACA’s prohibitions on discrimination “on the basis of sex,” which went into effect in 2016, under the Obama administration, by declaring that “sex” is meant to be interpreted according to its “plain meaning” — or, in other words, a person’s biological sex as assigned at birth.
The rule, which will take effect by Aug. 18, 2020, also eliminates protections for pregnant individuals that the Obama administration had embraced that prohibited providers and insurers from discriminating against a person on the basis of “termination of pregnancy,” including the denial of medical services or coverage related to an abortion.
On behalf of the Trump administration, HHS claims that the Obama administration erred in extending the protections against sex discrimination contained in in Section 1557 of the Affordable Care Act to transgender and pregnant individuals.
Instead, it argued that if the Obama administration wanted those individuals to be protected, such language should have been explicitly approved by Congress, rather than relying on and seeking to enforce more expansive interpretations of Title IX, the federal law prohibiting sex-based discrimination, which had embraced by HHS and the Department of Justice under the previous administration.
In fact, the rule claims that the protections for transgender and pregnant individuals “are in conflict” with Title IX, writing: “The 2016 Rule’s provisions on sex discrimination imposed new requirements for care related to gender identity and termination of pregnancy that Congress has never required, and prevented covered entities from drawing reasonable and/or medically indicated distinctions on the basis of sex. As a result, those provisions would have imposed confusing or contradictory demands on providers, interfered inappropriately with their medical judgment, and potentially burdened their consciences.”
“By contrast, under this final rule, each State may balance for itself the various sensitive considerations relating to medical judgment and gender identity, within the limits of applicable Federal statutes (which are to be read according to their plain meaning),” HHS wrote.
The issuance of the finalized rule achieves the intended goal of a nearly three-year-long process to rewrite Section 1557 pushed by Roger Severino, the head of HHS’s Office for Civil Rights and a former employee of the Heritage Foundation, a conservative think tank — who has called for a rewrite of the provision since before he even joined the Trump administration.
Severino, however, has pushed back against claims that the administration’s interpretations strips away LGBTQ protections, noting in an April statement that a federal court had previously overturned the gender identity provisions in the Act, and that even the Obama administration had declined to recognize sexual orientation as a protected category when it comes to discrimination in health care or insurance.
But LGBTQ groups say that while the new rule does not change the law, it will cause significant confusion among health care workers, doctors, hospitals, and health insurance companies, and potentially encourages those with personal or religiously-based opposition to homosexuality or transgenderism to refuse coverage or services to LGBTQ individuals or people living with HIV — even if they receive federal taxpayer dollars.
“We know that LGBTQ people experience discrimination at disproportionately higher rates when seeking medical care which, even before the COVID-19 pandemic, led to devastating health outcomes,” Sasha Buchert, a senior attorney and co-director of Lambda Legal’s Transgender Rights Project, said in a statement. “The Trump administration has enshrined its discriminatory interpretation into the HHS rule book but that does not — and cannot — actually change the law. However, this is enough to cause confusion and hurt our communities, especially transgender people and people of color who already face elevated rates of discrimination in health care settings. This rule change serves no other purpose than to target and discriminate against LGBTQ people. The cruelty is the point.”
Many LGBTQ advocates fear that transgender individuals and other vulnerable populations will simply avoid seeking medical care for fear of being discriminated against — thus potentially jeopardizing their health in the process.
“Today’s rule is a tragically failed public health policy and just flat out illegal,” Omar Gonzalez-Pagan, a senior attorney and health care strategist with Lambda Legal, added. “We will be challenging the rule because at a time when the entire world is battling a dangerous pandemic, which in the United States has infected more than 2,000,000 people and killed more than 116,000, it is critical for everyone to have ready access to the potentially life-saving health care they need.”
The Human Rights Campaign, the nation’s largest LGBTQ civil rights organization, has also promised to sue over the finalized rule, saying the rule will increased instances of discrimination based on sex stereotyping and gender identity. The organization has already said in a news release that it intends to argue that the removal of the Section 1557 protections undermines the ACA’s primary goal of eliminating barriers, and expanding access to, health care and health education programs.
“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,” HRC President Alphonso David said in a statement.
“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,” added David. “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.”
LGBTQ groups — many of whom previously submitted comments opposing the Trump administration’s proposed changes — also noted that the administration finalized the rule on the four-year anniversary of the Pulse nightclub massacre in Orlando, Fla., which killed 49 people and injured 53 others, most of whom were members of the LGBTQ community.
“On a day the world remembers and mourns the 49 lives lost in a senseless attack on our community four years ago in Orlando, the Trump administration has decided to continue its campaign to further discriminate and attack LGBTQ Americans, specifically transgender people,” GLAAD President and CEO Sarah Kate Ellis said in a statement. “This ruling encourages discrimination by stripping protections from LGBTQ people, disabled people, and others during a pandemic that threatens the most vulnerable. It is shameful, unnecessary, and unfortunately surprising. This is the 150th attack — and counting — against LGBTQ Americans from this cruel administration.”
Candice Bond-Theriault, senior policy counsel for reproductive health, rights, and justice at the National LGBTQ Task Force, said that the newly rewritten rule would only harm LGBTQ individuals, especially black and brown LGBTQ communities, people who have had abortions, and other marginalized communities.
“Whether it be from the COVID-19 pandemic or as a result of the police brutality we’ve seen on full display over the last few weeks, people across the country are suffering and in pain. That’s why it’s particularly despicable that the Trump administration would choose this moment to continue with its assault on the rights of LGBTQ people and members of other marginalized communities,” she said in a statement.
“At a time when we need expanded health care access and coverage more than ever, we’re instead getting hate and discrimination,” Bond-Theriault added. “In the streets and in our communities, we refuse to stay silent about these attacks on our freedoms. Our fight to get justice for all of us, however we may identify, is far from over.”
The Congressional LGBTQ+ Equality Caucus, in conjunction with the Congressional Asian Pacific American Caucus, the Congressional Hispanic Caucus, the Congressional Black Caucus, and the Congressional Pro-Choice Caucus, issued a statement slamming the Trump administration’s actions.
“To finalize a rule that will embolden discrimination against LGBTQ individuals, Black people, indigenous communities, Latinos, Asian Americans and Pacific Islanders, people with limited English proficiency, and those living at the intersection of more than one of these identities, is both cruel and unconscionable,” the statement reads. “In the midst of a pandemic disproportionately taking the lives of Black people, indigenous communities, Latinos, and Pacific Islanders, amid unprecedented protests for Black lives and racial justice, and in the midst of both Pride Month and Immigrant Heritage Month, the Administration’s final rule is exactly the opposite of what our country needs.
“Black, indigenous, and other women of color, and transgender and gender non-conforming individuals have historically been discriminated against when seeking health care. They continue to face obstacles to receiving the care they need as a result of systematic barriers, including poverty, racism and lack of insurance,” the statement continues.
“No one should ever have to fear seeking health care because they may be discriminated against based on who they are or the care they seek. No one should have to worry about being denied health care because they have had an abortion or are seeking a full range of birth control options. Section 1557 provides critical protection precisely because it recognizes that discrimination can be intersectional — meaning that someone is discriminated against because of multiple identities; for example, because they are Black and a woman, or because they are an immigrant and LGBTQ, or because they are elderly and disabled. The Administration’s efforts to unlawfully roll back Section 1557’s protections is shameful. It not only denies people their lived experiences but undermines their ability to seek health care with dignity.”
Andy Marra, the executive director of the Transgender Legal Defense and Education Fund, called the Trump administration’s move “particularly brazen” given the country’s current battle with the COVID-19 pandemic.
“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,” Marra said in a statement. “We look forward to challenging these reckless regulations alongside our partners to ensure trans protections remain intact.”
“While people are facing alarming rates of unemployment, a loss of health insurance, and a global pandemic, the Trump administration has rolled back rules meant to ensure people are not turned away from health care because of who they are or what language they speak. This is beyond heartless,” Louise Melling, the deputy legal director for the American Civil Liberties Union, said in a statement. “The Trump administration has made a mission out of putting politicians and religious beliefs above a patient’s health care. This is deadly and all of us should be outraged.”
Even The Trevor Project, which works to combat youth suicide — which is more prevalent among LGBTQ youth compared to their cisgender peers — denounced the rule as problematic, noting that the government’s intention to exclude LGBTQ people from protections sends a message to youth that their health and their lives aren’t valued by the current administration.
“Access to quality health care without discrimination is critical right now, and thankfully, whatever this new rule may say, LGBTQ people are still protected under the law,” Sam Brinton, the vice president of advocacy and government affairs for The Trevor Project, said in a statement. “This rule sends a dangerous and confusing message to health care providers at the worst possible time. In the midst of a global pandemic with serious implications for the LGBTQ youth The Trevor Project serves, the last thing our nation needs is for the Administration to suggest, contrary to the plain language of the Affordable Care Act, that medical care providers don’t have to treat transgender and nonbinary people with the same care and respect as everybody else.”
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