A final rule issued June 15 by the Department of Health and Human Services (HHS) rolled back the Obama administration’s broad interpretation of the Affordable Care Act’s (ACA) language pertaining to sexual orientation and gender identity.
Section 1557 of the ACA specified that covered health care programs and activities, such as hospitals and insurance, could not deny access to health care services or facilities based on sex and certain other conditions. Two years after the Affordable Care Act (ACA) went into effect in 2014, the Obama administration issued a regulation implementing Section 1557 “that redefined sex discrimination to include termination of pregnancy and gender identity, which it defined as ‘one’s internal sense of gender, which may be male, female, neither, or a combination of male and female,’” states the U.S. Department of Health and Human Services in a press communication
After a federal court blocked and then later threw out the Obama rule’s gender-identity provisions (along with provisions dealing with termination of pregnancy), the Trump HHS set about rewriting the rule in order to be able to enforce it. The new rule restores providers’ conscience rights and decision-making “by returning to the government’s interpretation of sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology,” HHS states. “The 2016 Rule declined to recognize sexual orientation as a protected category under the ACA, and HHS will leave that judgment undisturbed.”
HHS says the new rule will save taxpayers $2.9 billion in “undue and ineffective regulatory burdens over five years.”
Attorneys general from 23 states filed a complaint July 20 in U.S. District Court for the Southern District of New York seeking for declaratory and injunctive relief from the rule. The complaint makes reference to the June 15, the U.S. Supreme Court decision in Bostock v. Clayton County which redefined biological “sex” in the 1964 Civil Rights Act as encompassing gender identity and sexual orientation. The Bostock ruling dealt, however, focuses on discrimination in the workplace.
The rule should prevail says Ryan Anderson, senior research fellow at the Heritage Foundation. “It is eminently reasonable and even under the Bostock logic, it is lawful,” said Anderson.
Discrimination of Disagreement?
Anderson provided an example of how the rule may be challenged and defended. “Suppose the argument is the doctor/ hospital/ insurance covers double mastectomies in the case of cancer, but not in the case of gender dysphoria. For a discrimination claim to be successful, you have to argue that a patient with cancerous breast tissue is comparable, similarly situated to a patient with healthy breast tissue,” Anderson tells Health Care News.
“Perhaps some physicians will argue that the non-cancerous breasts are in fact unhealthy because they are the cause of the gender dysphoria. That will only further highlight that what we really have here is a disagreement about the diagnosis and treatment of gender dysphoria,” said Anderson. “And policies – like the Trump administration’s recent regulation on Section 1557 of the ACA – are entirely defensible for refusing to treat a disagreement on medical care as if it were discrimination based on identity.”
Bonner R. Cohen, Ph.D., (firstname.lastname@example.org) is a senior fellow at the National Center for Public Policy Research