The Department of Health and Human Services (HHS) is expected to release a new rule in the next few weeks that would make it easier for health care providers to discriminate against transgender people and women who have had an abortion in the past.
The Affordable Care Act bans discrimination on the basis of race, color, national origin, sex, age, or disability by health care organizations that receive federal money. In 2016, the HHS issued a rule that said that the ban on sex discrimination includes a ban on gender identity discrimination and discrimination based on procedures associated with a certain sex, like abortion. This allowed HHS’s Office for Civil Rights to take action against health care providers who discriminate.
So if a hospital receives federal funding and they refuse to treat a woman for pneumonia because she had an abortion several years ago, she would not have to go through the court system to get her discrimination claim heard but could instead work with HHS. In the same way, a health insurer that receives federal money in the form of tax credits could not have a blanket ban on transition-related services, according to HHS’s rule.
The right has been fighting this rule ever since it was published. Late last year, a court in Texas issued an injunction on the rule, barring HHS from working against anti-transgender discrimination, even though the Affordable Care Act is still law and the court system can be used to fight this sort of discrimination.
The Becket Fund for Religious Liberty said in a statement, “The government has no business forcing doctors to violate their medical judgment and perform harmful gender transition procedures on children.” This interpretation is nonsense: the Affordable Care Act’s anti-discrimination rule says that health care providers can’t discriminate when it comes to providing services they normally provide to everyone else. So an oncologist can’t turn away a cancer patient just because the patient is transgender.
And, of course, if a doctor’s religious beliefs require them not to treat a transgender person for something they would normally treat in other people, like a broken limb, then the doctor is free to refuse federal dollars, since the rule only applies to health care providers who take federal money.
Advocacy groups told The Hill that they haven’t seen the final version of the new rule, but that it’s not unexpected given the Trump Administration’s hostility to LGBTQ rights and health care. “This has been something we’ve been raising alarm bells about for a while,” Joshua Block of the ACLU said.
When the rule is released, there will be a period of public comment. “I don’t think they [HHS] are going to have an easy time… and we’ll make sure they hear every objection and justify what they’re doing,” Block said.
Lambda Legal’s Sasha Buchert pointed out that the process has been unexpectedly fast in drafting this rule. “I expected them to take more time in deliberating, in the same way the original rule was crafted, rather than crafting something internally and sending it over to DOJ,” she said.