By Julia Kagan
On June 19, 2020, the Trump-Pence administration finalized its changes to Section 1557 of the Affordable Care Act (ACA), which specifies the civil rights protections that apply to health care settings. First, some background. In 2016, the Obama administration issued regulations implementing Section 1557 of ACA that made clear that discrimination on the basis of “sex” also included discrimination over gender identity, gender expression, and pregnancy termination status. As a result, these categories of individuals gained the protected-class status applied under federal civil rights statutes.
While the law has not changed, the Trump-Pence administration is now reinterpreting the law in a way designed to eliminate these civil rights protections. The new rule limits the definition of “sex discrimination” so it now refers solely to biological sex. The administration claims that this change is intended to bring conciseness and clarification to the law, and will save taxpayers billions of dollars. But the HHS official in charge of the changes has stated that “gender identity and sexual orientation…are changeable, self-reported, and entirely self-defined characteristics” that don’t deserve protected-class status. Furthermore, the administration’s long-standing animosity towards women and abortion rights is well known, and its elimination of protection for pregnancy status is a clear effort to advance anti-choice regulations. All of the changes are entirely consistent with the Trump-Pence administration’s transphobic, anti-choice, and misogynistic world view.
The new rules have far-reaching and negative implications. The biggest impact is likely to be experienced by transgender and/or gender non-conforming people. Health care providers and insurance companies may now feel emboldened to deny services or coverage to a person because of their transgender identity and/or gender expression. They can refuse to pay for gender-affirming medical care (such as surgery or cross-sex hormones), which are often life-saving.
The change doesn’t solely impact gender-affirming medical interventions, however. It is far-reaching and applies to any type of medical care for any previously protected person: transgender and gender non-conforming individuals, people who have had an abortion, and those who have experienced a miscarriage. It applies whenever these individuals seek routine care. It applies to a person with a broken arm seeking care at the Emergency Room. It applies to people who are trying to get a coronavirus test. The most chilling impact is likely to be felt by those seeking care at religiously affiliated facilities, which are the most likely to deny services related to gender identity and reproductive health care.
The changes are not being accepted without a fight, however. Many prominent health organizations and legal teams are speaking out and planning to challenge the change. The American Civil Liberties Union, the Human Rights Campaign, and Lambda Legal’s Transgender Rights Project all intend to sue the federal government in order to reverse the policy. Furthermore, the Trump administration’s narrow definition of “sex discrimination” was struck down by a recent Supreme Court decision where the court ruled 6-3 that firing an employee based on gender identity or sexual orientation is a form of sex discrimination.
Julia Kagan is the NWHN Communications Intern