The Trump administration eliminated protections for transgender individuals under the Affordable Care Act (ACA).
During the Obama administration, the Department of Health and Human Services' (HHS') Office of Civil Rights (OCR) announced it would bar providers that receive federal funding from discriminating on the basis of gender identity under a part of the ACA known as Section 1557.
HHS officials announced the finalized rule Friday (PDF), saying they would “restore the rule of law” and save about $2.9 billion in “undue and ineffective regulatory burdens over the next five years.”
OCR officials said they would continue to "vigorously enforce" bans of discrimination on the basis of race, color, national origin, disability, age and sex. But the agency intends to return to the "plain meaning" of sex discrimination Congress intended.
The rule applies to federally facilitated and state-based health insurance exchanges created under the ACA and the qualified health plans offered by issuers on those exchanges.
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“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,” Roger Severino, director of the OCR, said in a statement.
The administration first proposed the rollback of the protections for patients who are transgender in May 2019. HHS received 198,845 comments in response to the proposed rule during the public comment period over the past year.
The $2.9 billion in savings is expected to be realized by eliminating a mandate that regulated entities send patients "excessive" notice and tagline inserts in at least 15 foreign languages in their healthcare mailings.
"We are doing our part to reel in unnecessary costs that add economic burdens to patients, providers, and insurers alike,” Severino said.
Industry response
The American Hospital Association (AHA) released a statement saying the final rule "weakens important protections" and could limit coverage for patients.
"Hospitals and health systems value every individual we have the privilege of serving, regardless of race, religion, national origin, sexual orientation or gender identity," AHA officials said 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."
America's Health Insurance Plans (AHIP) also released a statement opposing the move.
"We resolutely disagree with any attempt to remove protections in federal law that prohibit discrimination based on gender identity, sex stereotyping, and pregnancy status," Matt Eyles, AHIP president and CEO, said in a statement.
"We also firmly believe that non-English speakers should have ready access to health information," Eyles said. "Discrimination is wrong—period. Health insurance providers will continue to work with other health care leaders to eliminate barriers that stand between Americans who identify as a member of the LGBTQIA community and their better health.”
The Christian Medical Association (CMA) released a statement lauding the final rule.
"Biological gender carries very significant health implications that a physician must be able to recognize in making treatment decisions," said Jeff Barrows, M.D., CMA's executive vice president for bioethics and public policy as well as an OB-GYN, in a statement. "The freedom for a health professional to base decisions on the medical science regarding biological gender also carries conscience concerns that should not be overruled by politics or ideology.
However, the American Medical Association (AMA) said its doctors believed the federal agency is seeking to remove civil rights protections.
“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," said AMA President Susan Bailey, M.D., in a statement. “The federal government should never make it more difficult for individuals to access health care—during a pandemic or any other time."