The Trump administration is planning to repeal Obama-era regulations that prevent doctors, hospitals, and insurance companies from discriminating against transgender people.
Guidelines implemented in 2016 as part of the Affordable Care Act prohibit discrimination based on race, age, color, national origin, sex, or disability for health programs that received federal funds. Under Obama, the Department of Health and Human Services defined Section 1557 of the ACA, which covers sex discrimination, as also including bias based on gender identity. That determination affected nearly every physician and hospital in the U.S., since most accept some form of federal money, be it Medicare, Medicaid, or participation in health insurance marketplaces.
Groups like the Christian Medical and Dental Associations say Section 1557 pressures doctors to violates their religious freedom and independent medical judgment. But overturning those guidelines could leave transgender Americans unable to access hormone replacement therapy, counseling and gender-confirmation surgery, if a healthcare provider decided to turn them away.
In December 2016, U.S. District Judge Reed O’Connor’ issued a temporary injunction against the Obama-era guidelines, saying they “likely violate” the Religious Freedom Restoration Act, because they didn’t carve out protections for religious objections. O’Connor’s ruling, which also blocked a provision regarding abortion services, insisted “Congress did not understand ’sex’ to include ’gender identity.'”
According to Lambda Legal’s Jennifer C. Pizer, that conclusion displays “an excruciatingly narrow and legally incorrect definition of ’sex’ that would jeopardize protections for lesbian, gay, bisexual and transgender people.”
A number of courts have sided with the Obama administration’s understanding of “sex” to include gender identity in regards to the ACA, but the Trump administration points to O’Connor’s ruling as reason enough to reexamine the guidelines. The White House hasn’t revealed how it would rewrite them, but has declared its intention to do so.
“The court held that the regulation’s coverage of gender identity and termination of pregnancy was contrary to law and succeeded statutory authority, and that the rule’s harm was felt by healthcare providers in states across the country, so a nationwide injunction was appropriate,” Roger Severino, the director of HHS’ Office for Civil Rights, told The New York Times. “The court order is binding on HHS, and we are abiding by it.”
Dr. James L. Madara of the American Medical Association urged the Trump administration to keep the transgender healthcare protections in place. In a letter to Severino, Madara said the AMA “opposes any modification to the rule that would jeopardize the health and well-being of vulnerable populations.”
The White House hasn’t exactly been shy about targeting protections for transgender Americans: In 2017, Trump rescinded an Obama-era directive to public schools allowing students to use the facilities matching their gender identity, and did away with protections for federal workers claiming employment discrimination because of their gender identity.
In January, the administration announced the creation of a new “Conscience and Religious Freedom Division” at HHS, devoted to ensuring doctors, nurses and health-care workers wouldn’t have to facilitate services they found morally objectionable.