Health Department announces new rule weakening nondiscrimination protections for trans people

The rule makes revisions to the chief nondiscrimination provision of Obamacare, known as "Section 1557."

LGBTQ activists and their supporters rally in support of transgender people on the steps of New York City Hall, October 24, 2018 in New York City. (Photo by Drew Angerer/Getty Images)
LGBTQ activists and their supporters rally in support of transgender people on the steps of New York City Hall, October 24, 2018 in New York City. (Photo by Drew Angerer/Getty Images)

The Department of Health and Human Services (HHS) announced a new rule Friday that would seriously harm transgender people’s access to health care.

The department announced a revision to the nondiscrimination section of the Affordable Care Act (ACA), known as “Section 1557.” That provision prevented discrimination on the basis of race, color, national origin, disability, age, and sex. Under the Obama administration, the department interpreted sex discrimination to also include discrimination against transgender people. On Friday, however, HHS announced that it would only recognize the “plain meaning of the term.”

Roger Severino, the head of the department’s Office for Civil Rights, told reporters Friday that under the Obama administration, HHS interpreted nondiscrimination protections on the basis of sex to include someone’s sense of being “male, female, neither, or a combination of male and female,” as well as the termination of pregnancy.

The rule was previously challenged by religious groups who said it violated their beliefs, and a federal court issued an injunction blocking HHS from enforcing Section 1557’s non-discrimination protections for trans people and pregnant people. In April, the Justice Department said in court filings that it agreed with the decision and called the Obama administration’s expanded interpretation of the protections illegal.

LGBTQ rights groups have expressed concern that the new rule will hurt transgender people’s access to health care.

“Predicated on little more than prejudice, this proposal will abandon 2 million Americans who already face significant barriers to accessing adequate and life-saving health care,” Mara Keisling, executive director of the National Center for Transgender Equality (NCTE), said in a statement. “This is not about free health care or special treatment. It’s about the right of every American to be treated with dignity when they walk into an emergency room, meet a new doctor, or find the right insurance plan. If permitted, this rule will promote ignorance and hate that no American should have to face while seeking care, and we are ready to fight it with everything we’ve got.”


Lambda Legal, a civil rights organization that focuses on justice for the LGBTQ community, vowed to take legal action against the rule. Diana Flynn, the organization’s litigation director, said in a statement that when it comes to health care, “such an assault is especially pernicious and potentially life-threatening.”

“The Trump-Pence administration’s targeting of the LGBT community is unmistakable and unconscionable,” she said. “HHS should be in the business of ensuring that people get the health care they need, not providing excuses for providers and insurers to turn people away.”

The Trump administration has repeatedly gone out of its way to harm transgender people and their interests in its policy decisions. On Wednesday, the Department of Housing and Urban Development (HUD) announced a new rule that would allow federally funded homeless shelters to refuse to serve transgender people. Last month, HHS announced a new “conscience” rule, allowing health care workers to refuse to provide medical procedures — like sex reassignment surgery or abortion — if it violates their religious or moral beliefs. In March, the Department of Defense established a new policy that transgender people can serve in the military, but only if they do so according to their sex assigned at birth. People with a gender dysphoria diagnosis who are taking hormones or who have transitioned to another gender will not be allowed to serve under the new policy.

The new Section 1557 rule will go through a 60-day public comment period. As NCTE noted, the rule already went through two public comment periods in 2013 and 2015, which at the time “produced nearly 25,000 comments overwhelmingly supporting the recognition of transgender protections.” HHS will finalize the rule after looking through the feedback.

This story was updated with additional details.