HHS proposes restoring transgender health protections stripped by Trump-era rule

The Biden administration aims to restore nondiscrimination protections to transgender individuals that were stripped in a Trump-era rule.

The Department of Health and Human Services (HHS) issued a proposed rule Monday expanding Section 1557 of the Affordable Care Act, which prohibits discrimination based on sex, race, color, national origin, age and disability for certain health activities. The agency also wants to expand the purview of the rule to anyone that gets Medicare Part B. 

“We want to make sure that Americans are free from discrimination when trying to access the care that they need,” HHS Secretary Xavier Becerra told reporters during a call Monday. 

The regulation reinstates the scope of Section 1557, which was curtailed by the Trump administration

A 2020 rule eliminated prohibitions on discrimination against transgender individuals. It also eliminated protections based on pregnancy status and from sex stereotyping. The rule garnered major pushback from the provider and payer industries worried about a rollback of patient protections. 

HHS emphasized that the proposed rule also would make clear that discrimination based on sex includes any “discrimination on the basis of pregnancy or related conditions, including ‘pregnancy termination,’” a release on the rule said. 

Becerra did not elaborate fully on what this new protection means for people who live in states that outlawed abortion after the Supreme Court overturned Roe v. Wade last month

“This rule simply clarifies what we have in terms of rights,” he said. 

Another key addition to the rule is that it interprets anyone getting Medicare Part B as having federal financial assistance, ensuring that the nondiscrimination protections apply more broadly.

“Many of the services Medicare beneficiaries receive [are] classified as Part B services,” said Centers for Medicare & Medicaid Services Administrator Chiquita Brooks-LaSure during the reporter call. “This is making sure that the protections afforded are applied much more broadly across all of our programs.”

The rule comes with new requirements for providers and plans as well, including:

  • Requiring covered entities to give patients a notice of nondiscrimination and a notice on what language assistance and auxiliary aids may be available.
  • Prohibiting using clinical algorithms to support “decision-making in covered health programs and activities,” the release said. Such algorithms have been criticized in recent years for contributing to racial bias in healthcare.
  • Refining and strengthening the process for a provider to raise any conscience or religious freedom objections.

The rule is open for comment for 60 days. Becerra hopes the rule will be in place by 2023.