Health care rights for transgender patients in flux due to Trump administration rule change

The U.S. Department of Health and Human Services scrapped earlier this month an Obama-era rule that protected health care rights for members of the LGBTQ community. The change will likely have an especially strong effect on transgender men and women.

The rule change affects Section 1557 of the Affordable Care Act, which prohibits covered health programs or activities, like Medicaid and Medicare plans, from discriminating on several grounds, including “sex.”

The Obama administration redefined sex discrimination as “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.” The section was interpreted to protect health care rights of everyone, especially transgender men and women.

The new HHS rule change, finalized on June 12, scraps this definition, which the department says “exceeded the scope of the authority delegated by Congress in Section 1557.”

Under the final rule change, HHS now interprets sex discrimination “according to the plain meaning of the word ‘sex’ as male or female and as determined by biology,” an announcement from the department says.

“HHS respects the dignity of every human being, and as we have shown in our response to the pandemic, we vigorously protect and enforce the civil rights of all to the fullest extent permitted by our laws as passed by Congress. We are unwavering in our commitment to enforcing civil rights in health care,” Roger Severino, director of the Office for Civil Rights at HHS, said in a news release.

Gov. Jay Inslee and Washington State Insurance Commissioner Mike Kreidler decried the rule change, and Kreidler’s office is in the midst of rulemaking that will offer protections to some Washington residents, depending on what kind of health insurance coverage they have.

Washington state legislators passed protections for all Washington residents with state-regulated health plans this year in House Bill 2338, which includes prohibiting discrimination based on “gender identity” and “sexual orientation.”

Kreidler’s office is sending out notices to health insurers in the state about this new law, and his office is in the process of writing rules to interpret the new law. This law will apply to state-regulated health plans only, however, which does not include federal plans like Medicaid, Medicare or self-funded health plans that many larger corporations buy for their employees.

“The coronavirus pandemic is far from over, with cases rising across the country. Instead of expanding access to care to everyone who needs it, this president is once again attacking the most vulnerable among us,” Kreidler said in a news release. “The Supreme Court just issued a ruling that protects transgender people from discrimination in the workplace. They also should not be denied access to health care. The administration’s decision to release this regulation targeting transgender patients during Pride month and on the anniversary of the Pulse nightclub shooting illustrates exactly how it feels about the rights of transgender people in America.”

It is still unclear whether or not the U.S. Supreme Court’s ruling in the Title VII case Bostock v. Clayton County will be interpreted to include other parts of the Civil Rights Act, and if it will ultimately deem the Trump HHS rule change moot.

During the public comment period on the rule change, HHS acknowledged that a change in interpretation to Title VII case law could inform Title IX case law as well.