The Trump administration Friday finalized a rule that would remove nondiscrimination protections for LGBTQ people when it comes to health care and health insurance.
"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," said Roger Severino, who directs the Office for Civil Rights in the Department of Health and Human Services, in written statement announcing that the HHS rule had become final. The rule is set to go into effect by mid-August.
This is one of many rules and regulations put forward by the Trump administration that defines "sex discrimination" as only applying when someone faces discrimination for being male or female, and does not protect people from discrimination on the basis of sexual orientation or gender identity.
Supporters of the rule say this is a necessary reversal of Obama-era executive overreach, and will reduce confusion about the legal meaning of "sex discrimination." Critics argue the rule could further harm an already vulnerable group — transgender people — in the midst of a pandemic and historic unrest spurred by the killing of George Floyd at the hands of police in Minneapolis.
"I can't help but wonder if the timing [of this rule] is by design so that this is something that people won't pay attention to," says Tia Sherèe Gaynor, a political science professor at the University of Cincinnati.
What the final rule does
The rule focuses on nondiscrimination protections laid out in Section 1557 of the Affordable Care Act. That federal law established that it is illegal to discriminate on the basis of "race, color, national origin, sex, age or disability in certain health programs and activities." In 2016, an Obama-era rule explained that protections regarding "sex" encompass those based on gender identity, which it defined as "male, female, neither, or a combination of male and female."
In June 2019, under Trump, the HHS Office for Civil Rights proposed a rule (the one finalized this week) that reverses the one from the Obama administration. Severino explained at the time, "We're going back to the plain meaning of those terms, which is based on biological sex." He also said the rule could save hospitals and insurers and others $2.9 billion over five years, since they will be relieved of the requirement to print notices of non-discrimination in several languages and include them with any "significant" mailings.
Under the new rule, a transgender person could, for example, be refused care for a checkup at a doctor's office, explains Lindsey Dawson associate director of HIV Policy at the Kaiser Family Foundation. Other possible scenarios include a transgender man being denied treatment for ovarian cancer, or a hysterectomy not being covered by an insurer — or costing more when the procedure is related to someone's gender transition.
The Trump rule makes changes to gender-based discrimination protections beyond Section 1557 of the ACA; it affects regulations pertaining to access to health insurance, for example, including cost-sharing, health plan marketing, and benefits. Under the new rule, an insurance company could "charge higher premiums or other fees for those who are LGBTQ [or] cancel or deny coverage," Dawson says. The rule could also mean that those seeking an abortion could be denied care if performing the procedure violates the provider's moral or religious beliefs.
Even with the rule now finalized, an LGBTQ person who is discriminated against or denied health care can still sue, and courts may rule that their civil rights were violated in such a case. But that's not an easy avenue, says Dawson.
"Because of limited access to litigation, I think that it's fair to state that the ramifications [of this rule] could be pretty significant," she says. Protections will also vary based on where someone lives, she adds, so the rule "creates a patchwork of civil rights, compared to standardized protections."
For Severino, this move has been a long time coming. He joined the Trump administration from the Heritage Foundation, a conservative think tank, where he wrote a paper on gender protections in Section 1557. He's also a devout Catholic and, as director of the Office for Civil Rights, has made protections of religious freedom a key focus, including the right of doctors to refuse to provide care that contradicts their religious or moral beliefs.
The rule the HHS proposed on gender and discrimination in health care garnered 155,966 public comments.
Ryan Anderson, a senior research fellow at the Heritage Foundation and former colleague of Severino's, submitted a comment in support of the rule. Anderson says it simply reverses what he sees as the Obama administration's executive overreach. "Just for the lawmaking process, it's important that the Trump administration clarify that that's not what Congress had in mind when they used the word 'sex,' " he says.
No comments:
Post a Comment