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HHS Rolls Back Healthcare Protections for Transgender People



On Friday, June 12, the U.S. Department of Health and Human Services' Office of Civil Rights (HHS) moved to roll back protections for transgender people under Section 1557 of the Affordable Care Act (ACA), which bans discrimination in healthcare. The final rule, which goes into effect 60 days after it was announced, reverses earlier expansions of sex-based discrimination under Section 1557 by the Obama administration to include gender identity or the desire to obtain an abortion. (Actually, the change would remove discrimination protections based on sexual orientation and gender identity. But the change is much more likely to affect transgender people who are more often subjected to discrimination in receiving health care.)

On Monday, June 15, however, the U.S. Supreme Court ruled in the case of Bostock v. Clayton County that sex-based discrimination in the workplace includes discrimination based on gender identity or sexual orientation. While this landmark decision could impact the future of the HHS final rule, LGBTQ patients may avoid sharing information about their identities out of fear of discrimination. This could make it more difficult for providers to advance care for the transgender community.

In Section 1557 of the ACA, Congress made it unlawful for any health care provider that receives funding from the Federal government to refuse to treat an individual – or to otherwise discriminate against the individual – based on race, color, national origin, sex, age or disability. Similar requirements are imposed on health insurance issuers that receive federal financial assistance.

In 2016, the Obama administration issued a regulation that defined sex discrimination to include termination of pregnancy and gender identity, which it defined as “one’s internal sense of gender, which may be male, female, neither or a combination of male and female.”

But, in a statement announcing the final rule, HHS said it “restores the rule of law by revising certain provisions that go beyond the plain meaning of the law as enacted by Congress.” Section 1557 will be enforced by returning to the government’s interpretation of sex discrimination according to the plain meaning of the word “sex” as male or female and as determined by biology.

In addition, the new rule seeks to weaken protections for people seeking abortion or other reproductive healthcare and eliminates mechanisms for protection against discrimination, such as requiring health plans maintain a civil rights officer to handle complaints.

Although the repeal does not change the statutory protections of the Affordable Care Act itself, it threatens to mislead the healthcare community into thinking discrimination is lawful and may embolden providers to harass or deny care to trans people. However, such conduct remains illegal since trans people are still protected from sex discrimination in a healthcare setting under Section 1557, which remains fully in force.

This repeal is not in accordance with how courts have repeatedly interpreted Section 1557, namely that transgender discrimination in healthcare settings is unlawful. It is especially troubling that HHS and the Trump administration would seek to undermine healthcare access at a time when the nation is confronted by the coronavirus pandemic. The Transgender Legal Defense & Education Fund, Transgender Law Center, Harvard Center for Health Law and Policy Innovation (CHLPI), the National Women’s Law Center and others have already joined forces to challenge the rule. The advocacy organization Lambda Legal and the law firm of Steptoe and John have jointly filed a lawsuit entitled Whitman-Walker Clinic v. HHS challenging this new rule. Additional lawsuits are expected to follow.

If you feel that you or a loved one have been subject to discrimination in healthcare or health coverage and need advice or counsel, please call us at 973-509-8500 x213 or email LFarber@LFarberLaw.com.

The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.

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