Proposed rule by Trump Administration would gut nondiscrimination healthcare regulations protecting LGBT people and women who have terminated a pregnancy

BOSTON, May 24, 2019―Today, the Trump Administration proposed a new health care regulation that would reverse 10 years of progress in healthcare provisions prohibiting discrimination against individuals on the basis of sex, sexual orientation, gender identity, and having terminated a pregnancy.

The proposed regulation would do this in two ways. The first is by reversing a landmark 2016 nondiscrimination rule issued as part of the Affordable Care Act that

  • prohibited gender identity discrimination in health care;
  • prohibited sex stereotyping that could include some forms of sexual orientation discrimination; and
  • prohibited discrimination in health care based on having terminated a pregnancy.

The new proposed regulation would also remove sexual orientation and gender identity nondiscrimination language from:

  • Rules governing the health insurance exchanges, including 34 federally facilitated exchanges and 17 state exchanges;
  • Rules 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; and
  • Rules governing the access to services provided by the Program of All-Inclusive Care for the Elderly

“This proposed regulation is shocking in its scope. The Trump Administration is trying to reverse much of the progress made in federal health policy over the past decade,” said Sean Cahill, Director of Health Policy Research at The Fenway Institute. “This will disproportionately hurt transgender people, LGBT people with disabilities, LGBT elders, and low-income LGBT people.”

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.

“It is important to view this latest move in the context of a series of attacks on the rights of LGBT people that have taken place over the last two and a half years,” Cahill added. “This will make LGBT people less likely to access health care and elder services and will exacerbate health disparities.”

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.

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

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

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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