Last week, two black trans women were murdered. Friday, June 12 marked the fourth anniversary of the Pulse nightclub shooting, during which 49 people were shot and killed at an LGBTQ venue in Orlando. Friday was also the day the Trump administration announced it was rolling back an Obama-era regulation providing protections for transgender individuals under the Affordable Care Act (ACA) in the U.S. (Did we mention it’s also Pride month… and that there’s a pandemic on?) Even as the U.S. Supreme Court today ruled in favour of increased workplace protections for LGBTQ Americans, the current administration is rolling back Obama-era policies intended to provide them equal access to healthcare. Here’s what you need to know about this new policy.
What did the original regulation say?
The policy in question is found in Section 1557 of the ACA, which “prohibits discrimination based on race, colour, national origin, sex, age or disability in certain health programs and activities.” According to Health Affairs, “an individual cannot be excluded from participation in, denied the benefits of, or subjected to discrimination on these bases by any health program or activity of which any part receives federal financial assistance.” It’s also the primary anti-discrimination provision in the ACA, and went into effect on March 23, 2010 — the day the ACA was signed.
In May 2016, a new rule was enacted, dealing with Section 1557 of the ACA, interpreting the ban on sex discrimination to include discrimination on the basis of gender identity. In this case, “sex discrimination” is defined to include discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy or recovery from it, childbirth or sex stereotyping (including the idea that a person must identify as either male or female). This 2016 rule was also the subject of several lawsuits, including one brought by the Franciscan Alliance, a Catholic hospital system, in August 2019.
What does this new policy do?
On June 12, 2020, the US Department of Health and Human Services (HHS) issued a statement announcing that it was eliminating “certain provisions of the 2016 Rule that exceeded the scope of the authority delegated by Congress in Section 1557. HHS will enforce Section 1557 by returning to the government’s interpretation of sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.” So yeah, the U.S. is now back to the outdated and incorrect “vagina=woman, penis=man” rules of gender identity.
In practice, this new policy could mean that transgender and other LGBTQ individuals would be denied healthcare services. It will take effect on August 11, 2020, and as it’s written now, will be enforced on all Health and Human Services programs. It has the potential to impact the the 1.4 million transgender adults and 150,000 transgender teenagers ages 13 to 17 in the US.
According to the Human Rights Campaign (HRC), this new policy will sanction discrimination against LGBTQ people in health care programs and activities. Specifically, this could include making it easier for doctors and hospitals to discriminate against, and reduce access to care for transgender people. It also allows U.S. doctors to deny abortions, citing religious or other reasons, the Wall Street Journal reports. On top of that, the Trump administration’s policy change would allow health insurance companies to deny coverage for certain services to people who identify as transgender, like hormone therapies or hysterectomies.
How is HHS justifying this?
Great question — and yes, money does factor into the equation. In fact, HHS referred to the protections afforded to transgender individuals as “costly and unnecessary regulatory burdens.” By their estimation, eliminating this aspect of the ACA could save American taxpayers $US2.9 ($4) billion over the next five years — meaning they are literally putting a price tag on the lives of transgender folks in this country.
If you’re curious about the reasoning behind this, Roger Severino, director of the Office for Civil Rights at HHS, clears it up in a statement: “Now more than ever, Americans do not want billions of dollars in ineffective regulatory burdens raising the costs of their healthcare. We are doing our part to reel in unnecessary costs that add economic burdens to patients, providers and insurers alike.”
But, HHS does clarify that they “will continue to vigorously enforce federal civil rights laws prohibiting discrimination on the basis of race, colour, national origin, disability, age and sex in healthcare, as Section 1557 provides.” Just not for transgender or gender-nonconforming people.
Beyond the financials, HHS purports that this policy change “clears up the mass confusion unleashed by Obama’s redefinition of sex discrimination,” Severino told the Wall Street Journal, adding that “sex is a biological reality critically important in the practice of medicine and science, which are substantially funded by HHS.”
What’s next?
For now, human rights organisations like the HRC are starting the process of challenging this new policy in court. “We cannot and will not allow Donald Trump to continue attacking us. Today, the Human Rights Campaign is announcing plans to sue the Trump administration for exceeding their legal authority and attempting to remove basic health care protections from vulnerable communities including LGBTQ people,” Alphonso David, the group’s president, said in a statement on June 12.
In May 2020, when the policy change was first proposed, more than 1,000 medical and mental health practitioners signed a letter opposing this rollback of ACA protections. There have also been calls to hold off on enacting this rule until at least 90 days after the end of the COVID-19 pandemic, as this is not the time to restrict anyone’s access to healthcare.
“As the death toll and hardships created by the COVID-19 pandemic continue to grow, the Trump administration and the Department of Health and Human Services should be working to expand access to health care, not creating excuses for providers to turn away transgender Americans,” Mara Keisling, executive director of the National Centre for Transgender Equality, a co-organiser of the letter, told the Wall Street Journal.
Where you can learn more‚ and how to help change things
Here are some resources that will provide you with more background on this situation, as well as organisations that may be able to help change it:
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