April 28th 2020

By Casey Quinlan

American Independent Foundation

The Trump administration is finalizing its rewrite of a provision in the Affordable Care Act that would harm LGBTQ people’s access to health care, even in the middle of a pandemic.

Section 1557 of the ACA prohibits health care discrimination based on sex and gender identity. According to Politico, a Trump-administration rewrite of the rule has been circulated at the Justice Department, which means the final version could be released publicly soon.

The White House’s regulatory dashboard shows the rule is under review.

The Obama administration enacted a rule in 2016 that interpreted Section 1557’s ban on sex discrimination to include gender identity and termination of pregnancy.

That year, a Catholic hospital system, a Catholic medical group, a Christian medical association, and five states filed a lawsuit challenging HHS’ regulations. In the complaint, they argued the regulations forced facilities to deliver gender transition services that went against their religious beliefs and that the regulations on pregnancy should provide an exclusion for abortions.

In January of 2017, a judge halted those protections. The injunction is still in effect.

In April of last year, the Trump administration said it sided with the plaintiffs and claimed the Obama-era regulations were unlawful under the Administrative Procedures Act. In May, the Department of Health and Human Services announced it was proposing revisions to the rule.

Roger Severino, director of the HHS Office of Civil Rights, said at the time, “When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform. The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives.”

The HHS revision would remove any language that clarifies sex discrimination as including gender identity, which was defined under the Obama-era rule as someone’s “internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.” It similarly removes health insurance coverage protections for transgender people.

Additionally, the change would get rid of a provision that stops health insurers from varying benefits to discriminate against people living with HIV and LGBTQ people and would include abortion and religious freedom exemptions for health care providers.

HHS also said in its announcement last May that the revisions would eliminate language access requirements, which it called “unneeded paperwork burdens” and would remove major printing and mailing costs for sending notices to patients and customers each year.

Court decisions on whether sexual orientation and gender identity are included in the definition of sex discrimination have been mixed and the U.S. Supreme Court is currently considering whether the Civil Rights Act includes protections for LGBTQ people.

LGBTQ organizations blasted the revision proposal last May.

“The administration puts LGBTQ people at greater risk of being denied necessary and appropriate health care solely based on their sexual orientation or gender identity,” said David Stacy, director of government affairs at the Human Rights Campaign. “Everyone deserves access to medically necessary care and should never be turned away because of who they are or who they love.”

Sasha Buchert, senior and transgender rights project attorney for Lambda Legal, said at the time that “the proposed rule, if it went into effect, would only sow confusion in the health care industry, encourage more insurers to discriminate, and lead to more lawsuits to protect patients.”

Trump has frequently assailed LGBTQ rights throughout his presidency. HHS in particular has taken numerous steps to attack LGBTQ equality.

In November, HHS proposed a rule that removes language protecting LGBTQ people against discrimination in all of its grant programs.

Last year, the administration also proposed a rule to allow health care workers to deny care to people based on their “religious beliefs or moral convictions.”

LGBTQ advocacy groups opposed that rule and two federal judges have since struck it down, dealing heavy blow to the administration.

In 2018, HHS additionally changed or removed language on its website about sex discrimination and created a new division within its Office for Civil Rights, called the Division of Conscience and Religious Freedom.

That division’s aim is to ensure that health care providers don’t have to provide services, such as abortion, that they object to based on moral or religious grounds. Some have since voiced concerns about whether the division could be used to enable discrimination against LGBTQ people.

In 2017, HHS removed a “Lesbian and bisexual health fact sheet” from its website and stopped including questions about the LGBTQ community in surveys about services for elderly people and people with disabilities.

The Education Department, Department of Housing and Urban Development, and Labor Department have also worked to undermine protections for LGBTQ students, homeless people, and workers throughout Trump’s presidency.

LGBTQ people are already particularly vulnerable during the COVID-19 pandemic. According to recent estimates from the Williams Institute, hundreds of thousands of transgender people are at risk of severe illness and advocacy groups have called on Congress to address the specific needs of LGBTQ people during the crisis.

Posted with permission