HHS on Friday issued a final rule that will roll back a regulation issued under former President Barack Obama that prohibits health care providers and insurance companies from discriminating against transgender individuals.
The rule is slated to take effect in 60 days.
Final rule rolls back protections implemented under ACA
The Obama-era regulation relates to Section 1557 of the Affordable Care Act (ACA), which bans health care discrimination on the basis of sex. Under that regulation, providers and insurers that accept federal funding currently are prohibited from denying health care services based on an individual's gender identity. The regulation states that individuals "must be treated consistent with their gender identity, including in access to facilities." The regulation also prohibits affected providers and insurers from discriminating against individuals on the basis of "termination of pregnancy."
Currently, the federal government can suspend or terminate funding for hospitals and other affected entities that do not comply with the regulation, and HHS can work with the Department of Justice to determine whether the noncompliance is a criminal offense.
But in May 2019, the Trump administration issued a proposed rule to roll back the protections for transgender individuals and abortion care. HHS' Office for Civil Rights (OCR) at the time said the proposed rule instead would implement protections that are more closely aligned with text in the ACA's antidiscrimination provision, which the office said does not specifically mention gender identity as a protected category in health care.
Specifically, HHS said, "The proposed rule would maintain vigorous civil rights enforcement on the basis of race, color, national origin, disability, age, and sex." However, the proposed rule did not include the Obama-era protections against discrimination on the basis of gender identity or protections for pregnant people, meaning health care providers no longer would be required to care for pregnant people who are seeking abortion care or who have sought such care in the past.
On Friday, HHS in a press release announcing the finalized version of the rule said the new regulation will enforce Section 1557 based on the "plain meaning of the word 'sex' as male or female and as determined by biology."
Roger Severino, director of HHS' OCR, said the new rule "clears up the mass confusion unleashed by Obama's redefinition of sex discrimination. Sex is a biological reality critically important in the practice of medicine and science, which are substantially funded by HHS."
According to the Williams Institute, the new rule could affect protections for 1.4 million transgender adults and 150,000 transgender teenagers in the United States.
Some advocacy groups applauded the final rule.
Mary Beth Waddell from the Family Research Council said the Obama-era rule made it so "medical professionals could have been forced to facilitate gender reassignment surgeries and abortions—even if they believed this was a violation of their conscience or believed it was harmful to the patient."
But spokespeople for the American Medical Association (AMA), the American Hospital Association (AHA), America's Health Insurance Plans, and the American Medical Student Association all came out in opposition to the rule, and the Human Rights Campaign, American Civil Liberties Union, and Lambda Legal's Transgender Rights Project all said they intend to sue the federal government in hopes to force HHS to rescind the rule.
California Attorney General Xavier Becerra (D) also said he plans to sue the Trump administration over the final rule. "While HHS may be content to abandon its mission of protecting public health, California is not," Becerra said. "Allowing discrimination against LGBTQ individuals, women, and others goes against our public health goals and our values as a nation. We will do whatever is necessary to stand up for the Americans who would disproportionately bear the brunt of this foolish policy."
Rick Pollack, CEO of AHA, in a statement said, "Hospitals and health systems value every individual we have the privilege of serving, regardless of race, religion, national origin, sexual orientation, or gender identity. That is why we urged the administration to not move forward with changes to non-discrimination protections. We are deeply disappointed that this rule weakens important protections for patients and could limit coverage. Treating all with dignity and respect will continue to guide us in everything we do."
Susan Bailey, president of AMA, said, "The federal government should never make it more difficult for individuals to access health care."
Rep. Richard Neal (D-Mass.), chair of the House Ways & Means Committee, Rep. Frank Pallone (D-NJ), chair of the House Energy & Commerce Committee, and Rep. Bobby Scott (D-Va.), chair of the House Education & Labor Committee, in a joint release also expressed opposition to the final rule. They said, "We will fight to overturn this harmful rule because we cannot allow President Trump to send us back to a time of blatant health care discrimination against patients."
SCOTUS ruling upholding transgender workers' rights clouds legal landscape
According to NPR's "Shots," a Supreme Court ruling issued Monday regarding transgender workers' rights could affect potential legal challenges against the new final rule.
The Supreme Court in a 6-3 decision released Monday ruled that employers may not fire workers based on their sexual orientation or gender identity based on protections afforded to such workers under Title VII of the Civil Rights Act of 1964. According to Axios, Title VII prohibits discrimination based on based on "race, color, religion, sex, or national origin," but does not specifically name gender identity or sexual orientation as protected classes under the regulation. However, the high court in its decision wrote that "[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex." As such, "[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids," the Court continued.
According to "Shots," the case at the center of the Supreme Court's decision involved "issues closely related to the legal questions" facing HHS' new final rule," and the Court's decision therefore "might have major implications for the rule's legal footing" (Lotven, Inside Health Policy [subscription required], 6/12; Armour, Wall Street Journal, 6/12; Alonso-Zaldivar, Associated Press, 6/12; O'Brien, HealthLeaders Media, 6/13; Kaplan, New York Times, 6/13; Axios, 6/15; Simmons-Duffin, "Shots," NPR, 6/12).