New Obamacare Section 1557 rule.
Health care entities in the United States are now barred from discriminating against patients on the basis of their sexual orientation and gender identity as well as race, color, national origin, age, sex, or disability.
The U.S. Department of Health and Human Services’ (HHS) final rule revising Section 1557 of the Affordable Care Act (ACA) took effect on July 5. The 181-page rule covers any health care service or practice that receives direct or indirect federal financing from HHS. Since most health care entities deal with Medicare, Medicaid, the Children’s Health Insurance Program, subsidized Obamacare, or veteran care, the rule will apply to most health care professionals.
In section 92.207, the rule describes “nondiscrimination in health insurance coverage.” Insurers receiving direct or indirect federal financing cannot deny or limit coverage or claims, or impose additional costs based on gender identity, nor exclude or limit “health services related to gender transition or other gender-affirming care.”
The changes are an “important step” to health “equity” states an HHS news release. “The rule will restore protections gutted by the prior administration and help increase meaningful access to health care for communities across the country,” stated HHS. “The 1557 final rule draws on extensive stakeholder engagement, review of over 85,000 comments from the public, the Department’s enforcement experience, and developments.”
Hysterectomies for All
Section 1557 protections were part of the ACA when it was enacted in 2010. Various administrations have defined its scope differently, using their rulemaking authority. The new rule redefines sex to include “sexual orientation” and “gender identity.” In addition, health care professionals must recognize a patient’s choice of pronouns, regardless of their biological sex.
Specifically, the rule prohibits a “categorical position” against trans procedures. If a doctor performs a hysterectomy on a woman for cancer, the physicians must be open to performing the same procedure for transition purposes. “A gynecological surgeon may be in violation of the rule if they accept a referral for a hysterectomy but later refuse to perform the surgery upon learning the patient is transgender,” states Section 92.206 of the rule, as originally proposed.
Rapid Growth from Niche
When the Obama administration recognized sexual orientation and gender identity in its version of the rule in 2016, “gender affirming care” was a niche market, generally for adult patients who paid for such procedures out of pocket.
There has been an explosion in marketing “gender transition” since 2016, including for children. Admiral Rachel Levine, M.D., Assistant Secretary for Health at HHS and a biological male who identifies as a woman, said earlier this year the procedures have the “highest support” of the Biden administration.
An article in the Manhattan Institute’s City Journal backs up Levine’s claim, describing emerging evidence the White House is taking “marching orders” from transgender interest groups.
“This rule is going to transform the medical system for the worst because a categorical policy against gender-transition interventions is not ‘individualized,’ and would therefore be prohibited discrimination,” said Julie Marie Blake, a senior counsel at the Alliance Defending Freedom (ADF).
Due to the short- and long-term effects of puberty blockers, cross-sex hormones, and surgeries, many European countries have restricted their use, particularly for minors. Today, more than 23 U.S. states have outlawed such procedures on children.
Immediate Lawsuit
Florida state Attorney General Ashley Moody and the Catholic Medical Association, represented by ADF, immediately filed a federal lawsuit against HHS to stop the new rule.
“Florida passed a law to protect our children from dangerous, irreversible gender-transition drugs and surgeries,” said Moody, in a press release. “Now, Biden and his federal bureaucrats are trying to go around our child-protection law to force the state to pay for puberty blockers and gender-transition surgery for children.”
The lawsuit asks the court to set aside the new rule immediately and to declare it capricious and arbitrary.
‘Gross Abuse of Power’
Doctors and hospitals could lose the federal funds on which many are financially dependent if they do not revise their anti-discrimination policies to conform to the HHS rule, says Blake.
“That would prevent them from practicing medicine in most settings, and certainly take them away from the low-income patients who need them the most,” said Blake. “They’re really trying to compel physicians to transform health care in this way, which is a gross abuse of power.”
The rewrite of Section 1557 should be a wake-up call to Congress, says Robert Koshnick, M.D., author of Empower-Patient Accounts Empower Patients!
“A physician’s use of their training and ability should not depend on their acquiescing to an ideology which they do not believe in,” said Koshnick. “It may be a violation of their freedom of speech and to their basic economic rights for them to have use specific terms in addressing their patient for them to get paid for their services or practice their profession.”
End-Run Around State Bans
Unrelated to the rule change but potentially pivotal is the U.S. Supreme Court’s decision on June 24 to hear the Biden administration’s challenge to Tennessee’s “gender transition care” ban, with a decision expected in 2026. The U.S. Department of Justice contends such bans violate the Constitution’s equal protection clause.
“[The legality of state bans] is at the heart of this mandate,” said Blake. “The rule was designed to displace or set aside all of these state laws trying to protect children.”
“Even if you look at the ACA and say Congress has spending authority, those spending power conditions don’t give the federal government power to displace and preempt state laws,” said Blake. “You can’t pay people to violate state laws.”
AnneMarie Schieber (amschieber@heartland.org) is the managing editor of Health Care News.
