The Department of Health and Human Services’ final rule would narrow the scope of the ACA’s Section 1557, which bans descrimination based on race, color, national origin, sex, age and disability in health programs that receive federal funding.
In 2016 the Obama administration tried to extend protection to trans people by changing the definition of descrimination by sex to include “one’s internal sense of gender.” That rule has been tied up in the courts.
The Trump administration’s new rule removes gender identity as a form of sex discrimination. This means HHS will not punish healthcare providers or insurance companies that discriminate against patients simply for being transgender — nor will the agency have any regulation saying that sort of discrimination is illegal.
The regulation, first proposed as a draft rule in May 2019, limits the way discrimination “on the basis of sex” is defined in healthcare settings.
The new rule also provides a blanket exemption to health providers who refuse to provide abortion services because of their religious beliefs.
Under the 2016 rule, such exemptions would be considered on a case-by-case basis where religious beliefs were weighed against other factors. An analysis by the Kaiser Family Foundation found that this change means people in need of abortion services could be denied, delayed or discouraged from seeking necessary care, placing them at risk of serious or life-threatening harm in emergency cases where a person has limited access to health care providers.
NARAL Pro-Choice America released a statement calling the rule change an “unconscionable” move to strip LGBTQ people of protection from health care discrimination.
“This rule will hurt Americans and fall hardest on people who already face barriers to accessing healthcare,” the group said. “The cruelty of this administration knows no bounds.”
Although the new regulation reflects the administration’s opinion about the scope of antidiscrimination law, specifically concerning sex, it does not prevent a victim from suing in court. Transgender plaintiffs have prevailed in numerous recent sex discrimination lawsuits involving education and workplaces.
When the draft rule was released, critics vowed to challenge the final rule in federal court once it was released — so lawsuits now appear likely.
Since Trump’s first months in office, his administration has taken dozens of regulatory steps and court actions to legalize discrimination against LGBTQ people and limit reproductive rights — including arguing that stores can turn away customers for being gay even when state laws prohibit it. Often, the administration has invoked the notion of “religious freedom” to advance these aims, contending moral objections trump federal nondiscrimination protections and allow people to circumvent state civil rights laws.
In its latest regulation, HHS is asserting that bans on sex discrimination should be interpreted narrowly, which the Justice Department is also arguing in cases about employment currently before the Supreme Court.
When Congress passed the Affordable Care Act in 2010, lawmakers included Section 1557 to establish nondiscrimination protections in health care services and insurance by referring to Title IX of the Education Amendments of 1972 and other civil rights laws — but it left the specifics up to future rule-making. HHS under then-president Barack Obama fleshed out those details in a 2016 regulation that asserted Title IX’s ban on sex discrimination included discrimination on the basis of gender identity and termination of pregnancy.
The rule essentially prevented medical workers, insurers, or organizations from discriminating against transgender patients for any services — including transition-related care — and against women who have had or are seeking abortions in some circumstances.
A federal judge had blocked the Obama-era regulation at the end of 2016, and shortly after Trump took office, his administration announced plans to rewrite it.
Pertaining to abortion care, the 2016 nondiscrimination clause applied only when a health insurer or organization provided the same types of procedures for both abortions and nonabortion services. For example, a procedure called “dilation and evacuation” is used both in miscarriage care and abortion care. If a Catholic hospital provided this service for miscarriages, for example, it would also have to provide it for abortions.
The rule affected the vast majority of health care workers because it applied to any hospitals, doctors, or clinics that accept federal reimbursement or remunerations, like Medicare or Medicaid payments. It also affected insurance companies that participate in the health insurance market.
A group of states led by Texas, joined by several organizations, sued the Obama administration in a remote Texas district with only one presiding judge, who blocked the rule, so it never took effect. After Trump took office, HHS indicated that it would reverse the regulation in order to make the lawsuit moot.
The dispute is at the heart of a much larger national debate over what “sex” means: sex as identified by birth, gender identity, or other factors.
Many conservatives have insisted that if lawmakers intended for sex discrimination laws to address transgender people, they would have written such language explicitly into the bills, as they did in the Violence Against Women Act.
“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” Roger Severino, director of HHS’s Office for Civil Rights, said in a statement in May 2019 about the draft rule. HHS added in a fact sheet that the rule is “returning to the government’s longstanding interpretation of ‘sex’ under the ordinary meaning of the word Congress used.”
But several courts have found that federal bans on “discrimination because of sex” cover bias over sexual orientation and gender identity as forms of illegal sex discrimination. For instance, several federal courts have ruled, trans people endured bias because their gender identities differed from their sex at birth, or they didn’t conform to gender stereotypes for someone of their birth sex.
The Trump administration, however, narrowed its definition of “biological sex” in March 2019 when the Defense Department released a policy banning most transgender people from the military. The policy defined “biological sex” as a “person’s biological status as male or based on chromosomes, gonads, hormones, and genitals.