Last Friday, the United States Department of Health & Human Services (HHS) released a proposed rule to revise Section 1557 of the Affordable Care Act (ACA). Section 1557 was created to protect people seeking healthcare from discrimination based on a number of attributes, including sex. Under the Obama administration, the definition of sex discrimination was clarified to include gender identity, effectively guaranteeing that transgender and gender nonconforming (TGNC) people were also protected by this provision. Additionally, guidance under the Obama administration protected women, people able to give birth, and people with a cervix seeking sexual and reproductive healthcare, including birth control and abortions. For many TGNC people, women, people able to give birth, and people with a cervix – especially those with Medicaid and Medicare coverage – Section 1557 became an active shield. However, this proposed rule would eliminate Obama-era protections in the ACA – including stripping gender identity from the ACA’s nondiscrimination clause. Given the Trump administration’s record with protections for LGBTQ people, people able to give birth, and people with a cervix, this move is unsurprising. In fact, the rule mentions conscience protections and religious freedom throughout the proposed rule – hearkening back to HHS’ Final Conscience Rule from earlier this month.
Howard Brown Health vehemently opposes this proposed rule and its weakening of protections for our patients and communities at large.
With this proposed rule, HHS is providing two different ways for insurers, health systems, and individual medical providers seeking to prevent patients seeking full self-determination in the healthcare they seek. First, this proposed rule eliminates protections against discrimination on the basis of gender identity. Removing this language directly impacts TGNC people seeking coverage for gender-affirming services and treatment. With this revision, TGNC people who are discriminated against because of their gender identity will have no recourse under the ACA. This also means that covered entities will no longer be required to treat patients consistent with their gender identity.
Second, the proposed rule includes a new section that essentially duplicates the expanded religious and conscience exemptions in HHS’ Final Conscience Rule. As a result, Section 1557 does not apply to a covered entity or provider if it “would violate, depart from, or contradict definitions, exemptions, affirmative rights, or protections provided by” a number of federal civil rights laws. However, these civil rights provisions include those that allow providers to refuse access to sexual and reproductive healthcare, including the Religious Freedom Restoration Act, the Weldon Amendment, the Coats-Snowe Amendment, the Church Amendments, and both the Hyde and Helms Amendments. As written, this conscience exemption severely limits Section 1557’s ability to prevent discrimination on the basis of sex for women, people able to give birth, and people with a cervix. If finalized, the newly proposed rule would allow insurers, health systems, and individual medical providers to deny coverage, prescriptions, services, and treatment that involve any form of contraception or abortion.
“At Howard Brown, we will not allow this proposed rule to prevent us from providing care for our patients, including access to gender-affirming care and sexual and reproductive healthcare,” said David Ernesto Munar, President and CEO. “We will continue to advocate with the goal of securing access to the best care for all of our community members.”
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Casey Callich, Communications Manager, Howard Brown Health
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