On Oct. 15, a federal judge overturned an anti-discrimination provision of the Affordable Care Act, also known as ObamaCare, that protects transgender patients. The ruling stipulates that a 2016 policy instituted by then-President Barack Obama, known as Section 1557, violates the religious freedom of Christian and other faith-based providers.
Judge Reed O’Connor, a George W. Bush appointee from the United States District Court for the Northern District of Texas, vacated the Obama-era anti-discrimination regulation. The original provision was an addendum to the 2010 Affordable Care Act and prohibited denying treatment or coverage to anyone based on sex, gender identity or termination of pregnancy by insurers or providers who receive federal money. The Obama-era provision also stipulated that all doctors, medical professionals and hospitals must provide any “medically necessary” services to trans persons if those services were provided to cis patients, such as abortion services to trans men.
In 2018, O’Connor made an even more sweeping ruling that the entire Affordable Care Act is unconstitutional. O’Connor ruled then that the protection provision violated the Religious Freedom Restoration Act.
O’Connor’s latest ruling means that faith-based health care professionals are not required to perform any medical care for trans persons that is contrary to their religious beliefs. According to the Oct. 15 ruling by O’Connor, the so-called “transgender mandate,” as Section 1557 has been called, violates the Administrative Procedure Act and the Religious Freedom Restoration Act.
In August 2016, the Franciscan Alliance (a Catholic hospital system), a Catholic medical group, a Christian medical association and five states (later joined by three additional states) challenged the “transgender mandate.” The ACLU of Texas and River City Gender Alliance asked to intervene in the case to protect their interests in prohibiting gender identity discrimination. O’Connor disallowed that intervention.
The Christian challengers to the provision argued that the ObamaCare rule forces insurers to pay for abortions and compels doctors to perform gender affirmation services even if they disagree with those services on moral or medical grounds.
The Oct. 15 ruling reaffirms O’Connor’s December 2016 decision that the rule violates the Administrative Procedure Act. The judge also expanded on his previous ruling, holding that the rule violates the Religious Freedom Restoration Act. In the earlier decision, O’Connor said the providers’ and insurers’ refusal to perform, refer for, or pay for gender transition-related care or abortions was a sincere religious exercise burdened by the rule.
In 2016, O’Connor issued a nationwide injunction against enforcing the rule. The injunction stipulated meant that while the provisions were still in effect, the Obama administration could not sue a hospital or provider for noncompliance.
In 2016, Obama’s Department of Health and Human Services defended the rule. But once the Trump administration took over, HHS decided to drop its defense and argued the rule should be sent back to the agency to be rewritten to remove references to and protections for gender identity, removing all references to “sex discrimination,” as well.
Advocates for the ObamaCare provision assert that if those protections for sex discrimination and gender identity are removed, health care providers, hospitals and insurers will be permitted to discriminate against trans patients and deny them healthcare services.
Mazzoni Center’s Legal and Public Policy Director Thomas Ude said, “Yesterday’s ruling discounted the compelling interest in prohibiting sex discrimination, including discrimination because of gender identity or termination of pregnancy.”
He said the ruling comes as no surprise given O’Connor’s “nearly identical prior ruling” but offered hope: “Other well-reasoned court decisions recognize that the ACA, independently of its regulations, prohibits gender identity discrimination and discrimination based on termination of pregnancy. Vacating portions of the ACA regulation is sweepingly overbroad, and threatens people who are not parties to the case. The ruling is likely to be appealed, and its effect outside of the Northern District of Texas is questionable. Anyone discriminated against in health care because of their gender identity or because of a terminated pregnancy should consult an informed attorney to discuss their legal options.”