HHS aims to roll back non-discrimination protections for more than 1.5 million transgender people

The U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) is expected to announce this week two sets of rules: a proposed rule that, among other things, rolls back existing federal protections prohibiting discrimination based on gender identity in health care and a final rule that strengthens the ability of health care workers to refuse to provide health services for religious or moral reasons.

“These two rules could have immensely damaging impact on protections for vulnerable populations, including the LGBT community,” said Williams Institute Executive Director Jocelyn Samuels, the former director of OCR who led the process of drafting the original regulations implementing Section 1557. “One rule will likely try to eliminate much-needed protection for transgender and gender non-conforming patients, while the other could expand the authority for health care workers to opt out of providing care to this and other vulnerable communities.”

  •  First, OCR is expected to propose a rule that removes protections against gender identity discrimination from Section 1557, the nondiscrimination provision of the Affordable Care Act, which bans sex discrimination in federally funded health care. Currently, the regulations interpreting Section 1557’s ban on sex discrimination include discrimination based on sex stereotyping and gender identity, consistent with numerous court decisions.
  • The proposed rule would thus signal that OCR would refuse to enforce protections against gender identity discrimination in health care for the 4 million transgender adults and 150,000 transgender teens ages 13 to 17 in the U.S.
  • The reversal would have an even greater impact on people who live in the 28 states that lack legal protections from gender identity discrimination in public accommodations, such as health care facilities. Based on Williams Institute research, more than 780,000 transgender people—705,000 transgender adults and 78,000 transgender youth—live in those states.
  • For individuals lacking state-level protections, federal law offers the only remedy if they face discrimination. But OCR’s proposed rule will likely try to deprive these individuals of any federal protection from gender identity discrimination.
  • According to the 2015 U.S. Transgender Survey (USTS), one-third (33 percent) of transgender people who saw a health care provider in the prior year reported having at least one negative experience related to being transgender.
  • One-quarter of USTS respondents experienced a problem with their insurance, such as being denied coverage for care related to gender transition or being denied coverage for routine care because they were transgender.

Second, OCR’s forthcoming final rule is expected to expand the authorization for health care providers to refuse care based on their religious beliefs. This broad religious exemption could pose significant additional harm to the LGBT community as a whole. The existence of widespread discrimination and stigma against LGBT people in health care is well-documented.

“The issuance of these rules underscores the importance of passing the Equality Act, which would provide LGBT people nationwide with explicit protections from discrimination,” said Samuels.

April 28, 2019

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