The Trump Administration has announced that it is planning to roll back an important regulation in the Health Care Rights Law (HCRL), the critical part of the Affordable Care Act (ACA) that protects transgender people from discrimination in health care and insurance coverage.
The proposed rule, written by the Department of Health and Human Services, also permits providers to discriminate against women and those with uteruses who seek care after obtaining an abortion.
The HCRL is Section 1557 of the ACA (also known as Obamacare), which prohibits discrimination in health coverage and care. It bans discrimination on the basis of race, color, national origin, sex, age and disability in health programs and activities that receive federal funding. This includes most health facilities, like hospitals or doctors’ offices and most health insurance companies. Federal courts have consistently agreed, in discrimination lawsuits, that the law covers transgender people.
What the HHS proposal stipulates is that the Health Care Rights Law be restricted so that trans persons are no longer covered by those protections. That provision bars health care providers and insurance companies from discriminating against patients on the basis of sex. It also incorporates the definition of sex discrimination used in Title IX of the Civil Rights Act.
According to HHS, which Trump has populated with religious extremists like people from the anti-gay Family Research Council, sex discrimination does not include discrimination against people who identify with a gender outside of that which is assigned at birth.
Dr. Marcus Sandling, a physician at the Mazzoni Center, said the proposal puts trans people at risk. “Transgender people already face routine discrimination in the health care system, which we know puts transgender people at greater risk. This plan would harm transgender people and make it harder for them to seek health care.”
Charlotte Clymer, press secretary for rapid response at HRC and an out trans woman said, “This is the latest effort in a consistent, multi-pronged campaign by the Trump-Pence White House over the past two years to undermine the rights and welfare of LGBTQ people.”
The Trump administration has long promoted religious freedom bills and activities that often assert non-LGBTQ people have the right to deny services of any kind to LGBTQ people based on their religious beliefs. The U.S. Supreme Court has ruled against LGBTQ people in several discrimination lawsuits brought by lesbian and gay couples, finding in favor of religious freedom plaintiffs.
This latest move by the administration is a threat to the health and safety of transgender, gender nonconforming and nonbinary people. It means a trans person could have their insurance deny them coverage for gender-related care or even refuse to treat them at an urgent care center for something like a twisted ankle or severe bronchitis.
A secondary element to the proposal, which has gotten little attention, is that the proposed ruling also addresses Title IX with regard to education. In this part of the ruling HHS claims, “Policies of covered entities that result in unwelcome exposure to, or by, persons of the opposite biological sex, where either party may be in a state of undress — such as in changing rooms, shared living quarters, showers, or other shared intimate facilities — may trigger hostile environment concerns under Title IX.”
In short, if it’s triggering for cisgender students to be around trans students, the trans students must be removed.
For now, the focus is on the healthcare aspects of the proposed ruling, although the education clauses may be examined more closely as the fall semester at schools looms.
The National Center for Transgender Equality, in a FAQ for transgender people and their families and allies, explained, that “the Health Care Rights Law is the law of the land, and most courts have said it protects transgender people. Only Congress has the power to change the law by repealing the ACA.”
But the group warned, “However, the Trump Administration’s actions will likely cause confusion for many patients, providers and insurance companies, and it could lead to more anti-transgender discrimination.”
While it’s true that the law is still in place, it is equally true that Trump’s proposal means HHS will no longer investigate discrimination complaints filed by trans folks against health care providers. The protections under the HCRL can be enforced by people who experience discrimination suing in court or by people filing a complaint to HHS and asking the department to investigate. HHS will not investigate complaints of anti-transgender discrimination while the new proposal is in place, but transgender people can still file lawsuits themselves.
Transgender people who have faced discrimination by a health care provider, insurance company or another health program are advised by NCTE to reach out to an LGBTQ-friendly legal organization to get help. The NCTE provides a list on their website.
If the Equality Act passed, it would finally add clear, comprehensive non-discrimination protections for LGBTQ people to existing civil rights laws, vitiating proposals like this one from the Trump Administration. That bill is pending in the Senate.