Policy brief outlines the likely harm to LGBT people from a new health care regulation proposed by Trump Administration

July 25, 2019―Today, The Fenway Institute of Fenway Health released a policy brief outlining the harm to LGBT people likely to result from a new health care regulation proposed by the Trump Administration last month. The public has until August 13, 2019 to offer comment on the proposed regulation, and the authors of the brief urge health care professionals and advocates to submit comment urging the Trump Administration to reconsider the proposal.

The policy brief, “New rule proposes removal of LGBT nondiscrimination provisions from Section 1557 and other health care regulations,” is available for download as a PDF here.

On June 14, 2019, the Trump Administration released a proposed regulation that would reverse the 2016 final rule implementing the nondiscrimination provision of the Affordable Care Act (ACA). That measure, known as the 2016 Section 1557 rule explicitly prohibits gender identity discrimination, including discrimination against intersex and non-binary people, in health care facilities and programs receiving federal funding. The rule also prohibits some forms of sexual orientation discrimination that take the form of sex stereotyping.

“Initial news reports about the proposed rule characterized it as anti-transgender,” said Fenway Institute Health Policy Fellow Katherine Laurila, author of the brief, titled “New rule proposes removal of LGBT nondiscrimination provisions from Section 1557 and other health care regulations.” “But the scope of the proposed regulation extends far beyond the gender identity and sex stereotyping provisions of the 2016 nondiscrimination provisions of Rule 1557.”

Included in the Trump Administration proposal are provisions that would revise several other important health care regulations that explicitly prohibit both sexual orientation and gender identity. If finalized, the proposed rule would remove explicit sexual orientation and gender identity nondiscrimination provisions from:

  • Regulations governing the health insurance exchanges, including 34 federally facilitated exchanges and 17 state exchanges;
  • Regulations governing Qualified Health Plans;
  • Medicaid regulations, including language that explicitly prohibits sexual orientation and gender identity discrimination in Medicaid enrollment and availability of services, and language highlighting the importance of access and cultural considerations that calls on states to care for LGBT patients and others in a culturally competent manner;
  • Regulations governing the access to services provided by the Program of All-Inclusive Care for the Elderly.

“This proposed regulation would have far-reaching implications for the LGBT community, all of them negative,” said Carl Sciortino, Vice President of Government & Community Relations at Fenway Health. “If this rule is enacted, the Trump Administration will succeed in reversing much of the progress made in federal health policy over the past decade.”

Anti-LGBT discrimination in health care is widespread, correlates with poorer health and well-being for LGBT people, and makes LGBT people less likely to access health care. This exacerbates health disparities that LGBT people experience. Since 2011, the Joint Commission has required sexual orientation and gender identity nondiscrimination policies in health care institutions that it accredits. The Joint Commission is a nonprofit organization that accredits hospitals and other health care organizations.

Other anti-LGBT policies enacted by the Trump administration that are harming the health and access to care of LGBT people include:

  • Dismissing Peace Corps volunteers and Air Force service members who tested positive for HIV, and refusing to provide pre-exposure prophylaxis for HIV prevention (PrEP) to at-risk Peace Corps volunteers;
  • Placing transgender inmates of the Federal Bureau of Prisons, especially transgender women, at much higher risk of rape by incarcerating them according to their biological sex at birth instead of their gender identity;
  • Prohibiting transgender people from serving in the U.S. military;
  • Removing sexual orientation and gender identity questions from federal surveys of older adults, people with disabilities, and victims of crime;
  • Filing a brief with the U.S. Supreme Court arguing that gender identity is outside of the scope of Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on “race, color, religion, sex and national origin;”
  • Filing a brief in the Masterpiece Cake Shop case before the U.S. Supreme Court supporting discrimination against a gay male couple and stating that there is no compelling federal government interest in prohibiting anti-gay discrimination;
  • Attempting to repeal or weaken the ACA, which has cut the uninsured rate in half for LGBT people.

Other resources on the Trump Administration’s actions undermining the right of LGBT people to access health care and other services include:

A guide to the new proposed rules for health care providers by The Fenway Institute and the Center for American Progress: “Talking points for health care providers regarding LGBTQ nondiscrimination in health care

The 2019 policy brief: “Trump Administration continued to advance discriminatory policies and practices against LGBT people and people living with HIV in 2018

The 2016 policy brief: “What the new Affordable Care Act nondiscrimination rule means for providers and LGBT patients

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