On Tuesday, May 2, 2017, the Trump Administration signaled that it plans to reverse the Affordable Care Act Section 1557 regulation banning discrimination in health care on the basis of gender identity. After the Section 1557 rule was implemented under President Obama, a group of five states and religiously affiliated health care organizations filed suit against the Department of Health and Human Services (HHS), specifically challenging the provisions of the Section 1557 rule that interpreted sex discrimination to include discrimination based on gender identity and termination of pregnancy. As a result, a federal judge granted a temporary nationwide injunction which barred HHS from enforcing the rule. Now, under President Trump, the Department of Justice (DOJ) and Attorney General Jeff Sessions have filed a voluntary stay and remand of the case. The filing states that “new leadership at HHS has now had time to scrutinize” the challenged provision of the Section 1557 rule, and HHS has “concerns as to the need for, reasonableness, and burden imposed by those parts of the rule.” As such, the DOJ is filing for a stay and remand in order to give HHS “the opportunity to initiate rulemaking proceedings to reconsider the rule.”[i]
The Section 1557 rule is essential for addressing the widespread discrimination against transgender people in health care. Transgender people regularly experience discriminatory treatment in health care, such as being subjected to harsh language from a health care professional, experiencing physically rough treatment, being blamed for their own health conditions, and being denied health services.[ii] Experiences of discrimination in health care act as a key barrier to accessing necessary routine and emergency health care for transgender people, and exacerbate the health disparities experienced by the transgender community. Transgender people also frequently face discriminatory transgender-specific exclusions in insurance plans that allow insurance issuers to deny coverage for medically-necessary gender affirmation treatments. The Section 1557 rule prohibits these types of transgender-specific blanket exclusions in health insurance plans. These provisions are essential for increasing access to medical care for transgender people.
The court filing from the Trump Administration signals that HHS would like to reconsider the provisions of the Section 1557 rule related to discrimination on the basis of gender identity. If these regulations are reversed, it will negatively affect transgender people’s health and ability to access health care across the country.
[i] Franciscan Alliance, Inc. et al. v. Thomas E. Price, M.D., Secretary of the United States Department of Health and Human Services, et al. Defendants’ Motion for Voluntary Remand and Stay. Filed 05/02/17. Available online here.
[ii] Lambda Legal. 2010. When Health Care Isn’t Caring: Lambda Legal’s Survey of Discrimination against LGBT People and People with HIV. New York: Lambda Legal.