Transgender Workers May Lose Health Care Protections


Allen Smith, J.D. By Allen Smith, J.D. May 28, 2019

​The U.S. Department of Health and Human Services (HHS) proposed a rule on May 24 that civil rights groups fear will make it easier for hospitals to deny health care for transgender patients.

The proposed rule would amend the regulations interpreting Section 1557 of the Affordable Care Act (ACA), the law's main anti-discrimination provision. The proposal may affect transgender workers seeking treatment, as the department also recommended removing sexual orientation and gender identity protections from other HHS regulations, including nondiscrimination standards for qualified health plans, according to the Health Affairs blog.

We've rounded up articles from SHRM Online and other trusted news sources on the proposed rule.

'Plain Meaning' of 'Sex Discrimination' Recommended

Under the Obama administration, HHS had drafted ACA regulatory protections against discrimination based on sex to include an individual's own sense of being "male, female, neither, or a combination of male and female," as well as to cover termination of pregnancy.

The director of HHS' Office for Civil Rights (OCR), Roger Severino, said the purpose of the proposal was to bring the regulations in line with what lawmakers originally intended. "When Congress prohibited sex discrimination, it did so according to the plain meaning of the term and we are making our regulations conform."

Emilie Kao, director of the Richard and Helen DeVos Center for Religion and Civil Society at The Heritage Foundation, said the proposed rule would undo the federal "overreach." She added, "No American should be forced to violate deeply held beliefs, especially in hotly debated issues in health care."

(The Washington Post)

Court Blocked Obama Administration's Rule

In 2016, the Franciscan Alliance and eight states challenged the Obama administration's interpretation of sex discrimination under the ACA. On Dec. 31, 2016, the U.S. District Court for the Northern District of Texas prohibited OCR from enforcing the parts of the Section 1557 rule that prohibited discrimination based on gender identity or termination of pregnancy. It ruled that OCR's interpretation violated the Administrative Procedure Act and Religious Freedom Restoration Act. But the court action did not block individuals' lawsuits against hospitals and state Medicaid programs.

(Health Affairs blog)

Transgender Advocates Oppose Proposed Rule

The Trump administration's proposed rule faced immediate criticism from advocates for transgender individuals. Louise Melling, deputy legal director with the American Civil Liberties Union (ACLU), said the organization "refuses to allow the Trump administration to try to drag us backwards and roll back these essential, life-saving protections against discrimination." And she promised, "Should HHS finalize this discriminatory rule, we will see them in court."

(The Hill)

How Common Is Transgender Discrimination in Health Care?

On a press call about the proposed rule, Severino was asked what would happen if an emergency room refused care to someone who is transgender. "I have not heard of such a hypothetical actually happening in real life," he said. But Mari Brighe, a transgender woman and freelance writer in Detroit, said she had one emergency room visit where after she disclosed that she was transgender, no health care provider touched her for the duration of her visit. The Williams Institute at UCLA Law School, a policy think tank on issues affecting lesbian, gay, bisexual and transgender individuals, estimated the proposal will have the biggest effect on people in states without protections for transgender people.


[SHRM members-only toolkit: Employing Transgender Workers]

Many Companies Oppose Retracting Transgender Rights

After the district court barred the government from enforcing the Obama administration's nondiscrimination rule, there were rumors that HHS would retract transgender rights. More than 50 companies—including Amazon, Apple, Facebook and Google—signed a letter sent to the department in 2018, asking the federal government to uphold legal protections for transgender individuals. "We oppose any administrative and legislative efforts to erase transgender protections through reinterpretation of existing laws and regulations," they wrote.

(SHRM Online)


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