The National Center for Transgender Equality marching in Washington DC, 2017
The Trump administration announced plans to roll back an Obama-era policy preventing doctors, hospitals, and insurance providers from discriminating against transgender individuals.
What is the policy?
This regulation is Section 1557 of the Affordable Care Act. According to The National Center for Transgender Equality, Section 1557 ‘bans discrimination on the basis of race, color, national origin, sex, age, and disability in health programs and activities that receive federal funding.’ Adopted in 2016, this rule is meant to carry out important civil rights law embedded in the Affordable Care Act.
Though the Obama administration said it would apply to ‘almost all practicing physicians in the United States,’ the Trump administration believes it must be modified due to a federal judge in Texas deeming parts of it unlawful.
The judge’s reasoning was that when Congress defined sex, they meant the ‘biological differences between males and females,’ but not transgender status.
‘Congress did not understand “sex” to include “gender identity,”’ said Judge Reed O’Connor in Fort Worth, Texas. He says that in the Affordable Care Act (ACA), Congress ‘adopted the binary definition of sex.’
The definition of ‘sex’
‘That is an excruciatingly narrow and legally incorrect definition of the term “sex” that would jeopardize legal protections for lesbian, gay, bisexual and transgender people,’ said Jennifer C. Pizer, the law and policy director for Lambda Legal.
Another reason healthcare providers in states like Texas are against Section 1557 is because they believe it will require them to provide ‘abortion-related coverage’ to those looking to terminate a pregnancy. This provision was blocked by Judge Reed O’Connor as well.
Roger Severino, the director of the Office for Civil Rights at the Department of Health and Human Services, believes Section 1557 must be reexamined.
‘The court held that the regulation’s coverage of gender identity and termination of pregnancy was contrary to law and exceeded statutory authority, and that the rule’s harm was felt by health care providers in states across the country, so a nationwide injunction was appropriate,’ Severino told the New York Times.
‘The court order is binding on H.H.S. [Health and Human Services], and we are abiding by it.’
‘If the Trump administration rescinds the protections against sex stereotyping and gender identity discrimination, the effect will be potentially devastating not just for the trans community, but for any other patients who are gender-nonconforming, including lesbian and gay individuals,’ said Jocelyn Samuels. Samuels was the director of the civil rights office under Obama and helped create Section 1557.
In recent years, many federal judges across the country have concluded that sex discrimination laws do, in fact, apply to transgender people.
For instance, Barry Ted Moskowitz, the chief judge of the Federal District Court in San Diego, ruled ‘discrimination on the basis of transgender identity is discrimination on the basis of sex,’ and is thus prohibited by the ACA.