HHS finalizes rule it says protects civil rights; LGBTQ, women’s health advocates disagree
The HHS announced that it has finalized a rule that allows the government to interpret sex discrimination based on the definition of the word “sex” as male or female and biology — a move the agency also said “protects and enforces the civil rights of all.”
However, medical societies argue that the rule weakens nondiscrimination protections for LGBTQ individuals and also allows for religious exemptions that may limit women’s access to reproductive health care.
HHS: Rule ‘respects dignity’
HHS finalized the rule under Section 1557 of the Affordable Care Act. The agency said the rule prohibits discrimination in HHS-covered health programs or activities on the basis of race, color, national origin, sex, age or disability in certain health programs or activities.
“HHS respects the dignity of every human being,” Roger Severino, director of HHS’ Office for Civil Rights, said in a press release announcing the final rule. “We are unwavering in our commitment to enforcing civil rights in health care.”
According to the press release, the rule also:
- eliminates portions of previous rules that are duplicative of, or inconsistent with, Section 1557;
- restricts Section 1557’s powers to entities primarily involved in health care and other entities’ health care activities, when the activities are funded by HHS;
- complies with federal civil rights laws, including conscious and religious freedom protections; and
- allows health companies to forgo nondiscrimination information in multiple foreign languages, a move that HHS said would save Americans nearly $3 billion over 5 years.
Societies: Rule weakens ‘critical protections’
Multiple medical societies expressed concern when the proposed rule was announced last year, saying it ignored an important descriptor in its list of prohibited discriminations: gender identity.
The American Academy of Family Physicians, ACP, AAP, American College of Obstetrics and Gynecologists, American Osteopathic Association and American Psychiatric Association, jointly sent a letter to HHS, urging it to reconsider.
“Our organizations ... oppose efforts by the administration to weaken critical protections for any of our patients, including those who are transgender, those with limited English proficiency, those with disabilities, and those who are seeking access to reproductive health care,” the letter stated.
AMA wrote in its own comment letter to HHS that “transgender, nonbinary and gender nonconforming people already experience high rates of discrimination and harassment in health care.” It warned if the rule was enacted, the rule would exacerbate that issue, putting HHS on the wrong side of historical significance.
“The proposal marks the rare occasion in which a federal agency seeks to remove civil rights protections,” the letter continued. “It legitimizes unequal treatment of patients by not only providers, health care organizations, and insurers, but also by the government itself — and it will harm patients.”
AMA president Susan R. Bailey, MD, affirmed the association’s stance in a statement soon after HHS announced the final rule.
“The federal government should never make it more difficult for individuals to access health care,” she said. “Respect for the diversity of patients is a fundamental value of the medical profession and is reflected in long-standing AMA policy opposing discrimination based on race, gender, sexual orientation, gender identity or a woman's decisions about pregnancy, including termination.”
The GLBTQ Legal Advocates & Defenders, already in the process of a lawsuit challenging the legality of Section 1557, stated those efforts will continue.
“The purpose of the ACA is to ensure Americans have access to health care,” it said in a press release. “The Trump administration’s repudiation of those protections is both cruel and unjust. It will not hold up in court.”
After the final rule was announced, the Human Rights Campaign also announced plans to sue HHS, echoing a sentiment similar to GLBTQ Legal Advocates & Defenders.
- AAFP, AAP, ACOG, ACP, American Osteopathic Association, American Psychiatric Association. Letter regarding Section 1557. https://www.aafp.org/dam/AAFP/documents/advocacy/coverage/aca/ST-Group6-TransgenderSection1557-052819.pdf. Accessed June 15, 2020.
- AMA. Letter regarding Section 1557. https://searchlf.ama-assn.org/undefined/documentDownload?uri=%2Funstructured%2Fbinary%2Fletter%2FLETTERS%2F209-8-13-Letter-to-Azar-re-1557-Comments.pdf. Accessed June 12, 2020.
- GLBTQ Legal Advocates & Defenders. GLAD lawsuit tests Trump’s reversal of health care protections for trans people under ACA. https://www.glad.org/post/glad-lawsuit-tests-trump-administrations-reversal-of-healthcare-protections-for-transgender-people-under-the-aca/. Accessed June 12, 2020.
- Human Rights Campaign. HRC To sue Trump administration for eliminating anti-discrimination health care protections. https://www.hrc.org/blog/hrc-to-sue-trump-administration-for-eliminating-anti-discrimination-health. Accessed June 12, 2020.