Healthcare groups expressed disappointment in the Trump administration’s final rule taking gender identity and pregnancy termination out of the definition of forms of sex discrimination that are illegal.
“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,” American Medical Association President Susan Bailey, MD, said in a statement Friday, the day the rule was issued. “The federal government should never make it more difficult for individuals to access health care — during a pandemic or any other time.”
“Hospitals and health systems value every individual we have the privilege of serving, regardless of race, religion, national origin, sexual orientation or gender identity,” said Rick Pollack, president and CEO of the American Hospital Association, in a statement. “That is why we urged the administration to not move forward with changes to non-discrimination protections. We are deeply disappointed that this rule weakens important protections for patients and could limit coverage. Treating all with dignity and respect will continue to guide us in everything we do.”
At Issue: The Definition of Sex Discrimination
In late May 2019, the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued a proposed rule addressing a particular section of the Affordable Care Act (ACA). “In Section 1557 of the ACA, Congress directed HHS to apply existing civil rights laws and regulations to healthcare and the ACA Exchanges, including a 1972 law [Title IX] prohibiting discrimination on the basis of sex in certain federally funded programs,” the agency said in a press release. “In 2016, HHS issued a new rule that redefined discrimination ‘on the basis of sex’ to include termination of pregnancy and gender identity which it defined as one’s internal sense of being ‘male, female, neither, or a combination of male and female.'”
However, two federal courts have enjoined those provisions of Section 1557; as a result, OCR is issuing a proposed rule to comply with the court decisions, OCR director Roger Severino said on a phone call with reporters when the proposed rule was issued. The press release noted that the courts found that the transgender and pregnancy termination provisions were “contrary to the applicable civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act.”
“Our position … conforms with the text of the law itself. …We are not issuing an affirmative definition of sex in the regulation,” said Severino. He added that “We believe in the inherent human dignity of all people. HHS is here to make sure access to healthcare is available for everyone; it’s part of our mission. … That goal is not changed by this rule == in fact, this rule is in keeping with it.”
Is Transgender Discrimination Allowed?
When MedPage Today asked whether the proposed rule would allow providers to discriminate against transgender patients under certain circumstances, Severino did not answer directly. “We are not preempting state laws that may apply; if there’s any other federal regulation with respect to the provision of services, our proposed regulation may not apply. What it does do is say that the scope of discrimination on the basis of sex would no longer include gender identity … From the HHS perspective, it retains the current status quo … Nothing in the rule prohibits any entity from providing a range of services to any individual according to their medical judgment, and that includes any services related to their gender identity.”
In the final rule, HHS noted that it had heard from commenters on both sides of the issue; however, “The Department disagrees with commenters who contend that Section 1557 or Title IX encompass gender identity discrimination within their prohibition on sex discrimination,” OCR said.
“Some of the cases referenced by such commenters were decided under the Equal Protection Clause of the Constitution, under which courts have applied intermediate levels of scrutiny, permitting governments to adopt ‘discriminatory means’ on the basis of sex only insofar as those means are substantially related to the achievement of important governmental objectives and are not ‘used to create or perpetuate the legal, social, and economic inferiority of women.’ The Department does not agree that the Equal Protection cases cited by these commenters require Title IX to include a prohibition on gender identity discrimination.”
Effect on Abortion, Miscarriage Care
Regarding the agency’s decision not to include discrimination against women who have had abortions or are seeking them, HHS acknowledged that “Some commenters stated that removing the 2016 Rule’s definition of ‘on the basis of sex’ will allow discrimination against women based upon their abortion history. Commenters also identified a variety of other women’s healthcare services related to pregnancy that may be implicated, including prenatal and postpartum services, tubal ligations, and birth control … Commenters said that the proposed rule would or could permit discrimination against women through denial or restriction of access to treatments such as these, as well as treatments prior to, during, or after a miscarriage.”
The department added that “OCR will fully enforce its statutory authorities concerning any discriminatory denial of access to women’s health services, including those related to pregnancy. The Department, however, declines to speculate on particular hypotheticals related to termination of pregnancy, and will proceed based on the specific facts and circumstances of each case that may arise.”
Abortion rights advocates expressed concern about the broad effect of the rule. “This rule, finalized today by HHS, undermines protections for individuals and could give the green light for healthcare providers and insurance companies to discriminate against LGBTQ+ people, people who have sought or may in the future seek abortion care, people whose first language is not English, immigrants, people of color, and people with disabilities,” Adrienne Kimmell, chief research and communications officer at the pro-abortion rights group NARAL Pro-Choice America, said in a statement.
“This administration continues to prioritize political gain over the wellbeing of Americans, even in the midst of a public health emergency,” said Kimmell. “This ideologically-motivated rule is dangerous and runs counter to the Affordable Care Act’s promise of expanding healthcare coverage, free from discrimination.”
Source: MedicalNewsToday.com
