The Trump Administration is continuing its sustained attack on trans, non-binary, and gender non-conforming people. Coming on the heels of the trans military ban, and a proposal to allow discrimination on the basis of gender identity in homeless shelters, is a new attempt to strip trans folks of rights they gained under the Affordable Care Act.
Before the creation of the Affordable Care Act (also known as Obamacare), many insurance plans excluded transition-related care in their coverage. Additionally, being trans was considered a preexisting condition in some instances, which was used as an excuse to charge unaffordable premiums or deny people insurance coverage. Beyond that, trans people routinely experienced discrimination when seeking care or screenings typically associated with only one of the two binary genders. For example, a trans woman who sought screening for prostate cancer could be refused care at a clinic or hospital. Further, even if they received care, their insurance company could refuse to cover the screening. Finally, transphobic discrimination in health care is widespread. Transgender people may be turned away at the front desk, ignored in the examination room, or even harassed by providers just for being trans. Before the ACA, folks who experienced such discrimination had no legal remedy.
A key provision of the ACA is the ‘Health Care Rights Law’ (also known as ‘Section 1557’). It bans discrimination on the basis of race, color, national origin, sex, age, and disability within health programs and activities that receive federal funding. This includes most health facilities, like hospitals or doctors’ offices, and most health insurance companies. However, even complex legislation like the ACA doesn’t always specifically define every term used in every part of the law. Federal agencies often adopt regulations (also called “rules”) to explain in greater detail what different laws mean. Regulations do not create new protections that weren’t already there or change the law, but they do provide important clarifications about what the law requires. In 2016 (under the Obama Administration), the Department of Health and Human Services (HHS) adopted a rule explaining what Section 1557 means and how it should be enforced. Under the 2016 rule, it was clarified that the prohibition of discrimination on the basis of sex included sexual orientation and gender identity. In short, this means that any facility, health care organization, or insurance provider that receives federal funding cannot discriminate against transgender or LGB+ folks.
Soon after taking control of the executive branch in early 2017, the Trump Administration challenged this Section 1557 rule for the first time. While the active and public challenging of such a rule by the Trump Administration is disheartening and unsettling, it is important to note that the more LGBTQ+ inclusive rule has been and still is in effect. The Trump Administration recently released a new proposed regulation falsely claiming that 1557 does not protect LGBTQ+ people from discrimination.
While the Trump administration’s proposed regulation won’t change the law—which most courts agree protects transgender people—it encourages the incorrect idea that discriminating against transgender people in health care is legal, and it sends the message that when trans folks do face discrimination, the federal government can’t be trusted to enforce the law.
So where does this leave us?
1. It is important to remember that the law has not changed.
2. The Supreme Court has not yet ruled on cases relevant to Section 1557.
3. Only Congress has the power to change the law by repealing the ACA.
That being said, the Trump Administration’s actions, and the accompanying false claims, will likely cause confusion for many patients, providers, and insurance companies, and it could lead to more anti-trans discrimination. Before this new proposed rule takes effect, there is a period of public comment. Our colleagues at the National Center for Transgender Equality have set up a tool where you can make your voice heard by directly submitting your comment on this attempt to strip trans folks of their rights. If you have further questions about this or any other related topic, please feel free to contact Institute Lead Trainer, Ramona Peel at email@example.com.