What’s At Stake In Trump Promise To Roll Back ACA Nondiscrimination Rule?

by Lois Uttley. This article originally appeared on the Community Catalyst blog.

Photo Credit: “Out & about & fitted” | Photo by kaibmyers

The Affordable Care Act (ACA) includes a groundbreaking nondiscrimination provision known as Section 1557, or the “Health Care Rights Law,” which serves as the first federal law to prohibit sex discrimination in health care. Section 1557 is critical to protecting women and LGBTQ individuals from discrimination in health care. Unfortunately, Section 1557 is not immune from ongoing efforts to sabotage the ACA: The Trump Administration indicated that it intends to roll back or repeal parts of the rule that the Obama administration issued in 2016 implementing Section 1557.

What is Section 1557 and how did the Obama rule interpret it?

Section 1557 of the ACA provides broad protections against discrimination in health care on the basis of an individual’s race, sex, color, national origin, age or disability. Protected individuals cannot be denied participation in, denied the benefits of or otherwise or be subjected to discrimination under any health program or activity that receives federal funds. The rule applies to most hospitals, pharmacies, clinics and all of the health plans offered on ACA-established health insurance marketplaces.

In 2016, the Obama administration’s Department of Health and Human Services (HHS) released a rule to clarify how agencies were to interpret discrimination “on the basis of sex” under the ACA. The rule explicitly stated that sex discrimination includes any discrimination based on sex stereotyping,  gender identity or termination of pregnancy. This formal clarification recognized existing legal understanding from court precedents (including cases involving Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972), and made it easier for LGBTQ individuals (especially those who are transgender or gender nonconforming) to enforce their rights under Section 1557.

The rule’s definition of sex discrimination explicitly applies Section 1557 protections to all transgender, gender non-conforming, genderqueer and non-binary individuals. The inclusion of sex stereotyping as a prohibited basis for discrimination made clear that LGB individuals could claim protections under Section 1557 because the term encompasses any gender expressions and sexual attractions or behaviors that deviate from heterosexually-defined gender norms. The rule also prohibits discrimination in health care against an individual who has had an abortion or is seeking an abortion.

Why is the Trump administration working to change the Section 1557 implementing rule?

A group of religiously-affiliated health care providers, joined by conservative attorneys general from eight states, filed a lawsuit in 2016 claiming the Obama administration’s rule interpreting Section 1557 violates their religious rights. They insist they should be able to discriminate against patients because of their gender identity or because they have had an abortion or are seeking one. The plaintiffs asked the judge in the Northern Texas court to stop the U.S. Department of Health and Human Services (HHS) from enforcing the those portions of the section 1557 rule prohibiting discrimination based on gender identity or abortion. The court halted enforcement of those aspects of the rule, and stayed further court proceedings while the Trump administration reviews the rule. The judge suggested the Obama administration had gone beyond what Congress intended in its interpretation of “sex discrimination.”

Responding to the court action and to complaints from its conservative religious supporters, the Trump administration has indicated it intends to issue a new section 1557 rule that rolls back parts of the Obama rule. There have been suggestions that the Trump rule might create an exemption for health providers or insurers citing religious or moral objections. Legal analysts have pointed out that the language of the law itself contained no religious exemptions, so the basis for such a rule is unclear.  The new proposed rule has been under review at the federal Office of Management and Budget, and was rumored to be issued over the summer, but the date of its release remains unknown.

Does this mean Section 1557 would no longer be valid?

No, it is important to recognize that changes to the rule would not mean that the language of Section 1557 is no longer valid. Discrimination on the basis of sex in health care is still unlawful, and individuals have been continuing to file lawsuits alleging gender identity discrimination on that basis. For example, in September 2017, a judge in Southern California ruled that discrimination in health care on the basis of gender identity is prohibited on the basis of the statutory language of Section 1557.

However, a new Trump administration rule would likely make it harder for some women and LGBTQ people individuals to enforce their rights by filing discrimination complaints with the HHS Office of Civil Rights. This is the same office that recently created a new Conscience and Religious Freedom Division to protect the rights of religious health providers. These institutions make up a significant portion of the U.S. health care system, especially in some states.

Moreover, a new Trump rule could send an unfortunate message to health providers and insurers, leaving LGBTQ people and women who seek reproductive health services vulnerable to an increase in discriminatory practices within the health field. Such practices could include purposeful mis-gendering of individuals, unnecessary or assaultive exams, hostile or aggressive treatment of a patient by staff and improper hospital room assignments that deny a patient’s chosen gender identity, all of which have been found to be discriminatory in court cases.

Any proposed changes to the Section 1557 rule from the Trump administration would have to be posted publicly, undergo a public comment period and be justified through a reasoned explanation. It will be critically important for health advocacy organizations to speak out against any rule changes that will allow discrimination against women and LGBTQ people.

 

Morgan McCallister contributed to this blog posting, she is an MPH graduate student in Health Policy and Law at the Boston University School of Public Health and a summer intern with the Community Catalyst Women’s Health Program.

The opinions expressed in this article are those of the author and do not necessarily reflect those of the Diverse Elders Coalition.