UPDATE, June 14, 1:45 p.m.: The Trump administration published its proposed changes to Section 1557, triggering the start of the notice-and-comment period when members of the public can weigh in.
The Trump administration on Friday delivered on a promise to try to undo anti-discrimination provisions in the Affordable Care Act (ACA), announcing significant changes to Section 1557 that primarily target transgender patients and abortion care.
The proposed changes would directly impact transgender patients by eliminating protections from discrimination on the basis of gender identity and sex stereotyping. The proposed changes also eliminate protections from discrimination on the basis of pregnancy termination. That would mean health-care providers could refuse to provide transition-related services and some forms of reproductive health care.
“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” said Roger Severino, director of the U.S. Department of Health and Human Services’ Office of Civil Rights, in a statement announcing the proposed changes. “The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives,” said Severino. “The proposed rule would accomplish both goals.”
“This move by the Trump administration is nothing less than an act of violence against those whose health care needs have historically been ignored, neglected, and dismissed,” said Louise Melling, deputy legal director of the American Civil Liberties Union, in a statement following the release of the proposed regulations. “Transgender and non-binary people experience staggering rates of discrimination from health care institutions and providers. They face the denial of medically necessary health care related to gender transition, harassment from medical providers, negligent care, and the refusal of medical service altogether. The administration wants to take away protections to stop that discrimination, an action that will lead to devastating health consequences. The proposed changes would also strip protections from people based on reproductive healthcare decisions, including whether they have had an abortion.”
The existing rule was first enacted in 2016, six years after the ACA was signed into law. The rule prohibits any health-care entity who receives federal funding from discriminating in the delivery of care or services on the basis of sex, gender, or the termination of a pregnancy. Republicans have had their sights set on the rule since it was first enacted, filing a lawsuit in federal district court arguing that the Obama Administration lacked the authority to issue it. In late 2016, Judge Reed O’Connor agreed with Republicans, ruling that Congress had only intended to ban discrimination on the basis of “biological sex.” He issued a nationwide preliminary injunction blocking enforcement of the rule. The Fifth Circuit Court of Appeals is scheduled to hear oral arguments in that lawsuit in early July.
The injunction, however, did not prevent individuals from bringing their own discrimination claims under Section 1557 and state civil rights laws. And increasingly, federal courts have sided with transgender patients. In July 2018, a federal judge ruled that the state of Wisconsin’s Medicaid program must cover transition-related costs. In March, the Iowa Supreme Court unanimously ruled that state’s Medicaid program must also cover transition-related care.
The proposed changes announced by the administration Friday target the ability of individuals to bring their own discrimination claims under Section 1557 and attempt to limit which entities are covered by the rule to begin with.
Friday’s announcement follows the administration’s finalization earlier this month of an expansive conscience protection rule for health-care providers. That final rule permits providers to refuse to provide treatment, referrals, or assistance with procedures if these activities would violate their stated religious or moral convictions. The rule covers refusing to provide health care as well as any health-related services like research activities, health studies, or health-related insurance coverage. Two lawsuits have been filed so far to try and block the religious and moral exemption rule.
“Yet again, the Trump Administration strives to harm LGBT people; this time by rolling back crucial health care protections for LGBT people and other vulnerable persons,” said Diana Flynn, litigation director for Lambda Legal. “The move comes during the same week that HHS finalized its Denial of Care Rule inviting heath care discrimination against LGBT people and others, and the news that the Department of Housing and Urban Development is proposing a new rule that will allow federally-funded homeless shelters to turn away transgender people. This week’s nefarious trifecta is just the latest in the Trump administration’s unrelenting campaign to promote anti-LGBT discrimination.”
The proposed regulation will now go through a 60-day public comment period before the administration issues a final rule. Advocates have promised swift legal challenge should the final rule mirror what was proposed Friday.
“Should HHS finalize this discriminatory rule, we will see them in court,” Melling said