Amid the coronavirus pandemic, the Trump administration’s Department of Health and Human Services (HHS) is finalizing its plan to end an Obama-era policy that protected LGBTQ patients — particularly transgender patients — from discrimination. HHS has circulated the final ruling at the Department of Justice in advance of releasing its revision of Section 1557, the provision in the Affordable Care Act (commonly referred to as Obamacare) that bars healthcare discrimination based on sex, sexual orientation and gender identity.
In 2010, the Obama administration added its nondiscrimination protections to the ACA. Healthcare advocates had petitioned the administration, citing how LGBTQ patients were being denied access to care. Section 1557 added protections for trans persons and added other protections for people seeking abortions.
In 2016, a federal judge blocked those protections based on religious freedom arguments in response to a lawsuit from religious groups. The Trump administration has attempted to further challenge the rule by revising it completely.
In 2019, HHS proposed radical changes, moving to eliminate similar nondiscrimination protections for LGBTQ patients that were contained in other regulations.
Roger Severino, Director of the Office for Civil Rights at HHS has a long history of anti-LGBTQ actions. Prior to his work for HHS, Severino was Director of the DeVos Center for Religion and Civil Society at The Heritage Foundation.
HRC has described Severino as “a radical anti-LGBTQ activist.”
In a statement, Severino said, “As we have shown in our recent efforts to protect persons from disability and age discrimination during the pandemic, HHS will vigorously enforce civil rights laws as passed by Congress, before, during, and after any rulemaking.”
Severino noted that “the Obama administration declined to recognize sexual orientation as a protected category under Obamacare, and HHS proposed to leave that judgment undisturbed.”
Despite Severino’s claims, healthcare advocates argue that this latest action by HHS is particularly egregious, fearing that LGBTQ people will be turned away from vital services when they most need access due to the pandemic. The change in the law could allow hospitals and health care professionals to discriminate against patients based on their sex, gender identity or sexual orientation.
In April, a field hospital operating in New York City under the aegis of Samaritan’s Purse in conjunction with Mount Sinai Hospital, forced healthcare workers to sign a “statement of faith” that was called a blatant effort to side-step the city’s nondiscrimination protections for LGBTQ people.
In response to the move by HHS, more than 100 organizations sent a letter to the agency enumerating how health care discrimination puts LGBTQ people at particular risk of potentially deadly outcomes from the coronavirus.
The Center for American Progress (CAP), a liberal think tank, released a study they commissioned showing that 1 in 4 LGBTQ people reported experiencing discrimination in the year prior to the study. The study also showed that 8% of lesbian, gay and bisexual people and 29% of trans people reported that a health care provider refused to see them because of their actual or perceived sexual orientation or gender identity. LGBTQ people who experienced any form of discrimination were nearly seven times more likely to report avoiding a visit to a doctor’s office to avoid discrimination.
During a pandemic, that could have fatal implications.
Healthcare professionals voiced their concerns that LGBTQ people are already at higher risk from the virus, citing various studies.
According to the Centers for Disease Control (CDC), LGBTQ people experience high rates of chronic conditions that compromise their immune systems and heighten their vulnerability to contracting COVID-19. The CDC estimates that a full 65% of LGBTQ adults have pre-existing conditions such as diabetes, asthma, heart disease or HIV.
The CDC states that these conditions put LGBTQ people at high risk for poor outcomes from COVID-19. Another risk factor is smoking. A 2016 study from the Behavioral Risk Factor Surveillance System showed smoking rates for LGB adults were 49% higher than rates for non-LGB adults. Rates were 42% higher for trans adults than for cisgender adults.
In addition, studies also show that LGBTQ people are significantly less likely to have health insurance, adding to their vulnerability during the pandemic.
Thomas W. Ude, Jr, Legal and Public Policy Director for the Mazzoni Center, was stunned by the timing from the Trump administration. Ude said, “Doesn’t HHS realize that it has more important issues — like the current pandemic — to focus on?”
Ude said, “It is unconscionable, but sadly not surprising, that HHS would finalize its roll-back rule in the middle of this. Everyone at HHS should be doing everything they can to ensure access to healthcare for everyone. This does the opposite.”
Ude explained that the move from HHS doesn’t actually change the law, but it will heighten fear among LGBTQ people.
Ude said, “The rule won’t change the law, which is set by the courts — including the U.S. Supreme Court, which has cases pending that are directly relevant. What the rule will do is cause confusion and fear among LGBTQ people, people living with HIV and people seeking reproductive health care, including abortion. HHS is showing, once again, that instead of science and medicine, the administration is hellbent on centering its policies in bias and ignorance. And we are all much worse off because of it.”