Department of Health and Human Services Revise Rules Related to Transgender and Nonbinary Healthcare

The federal government has changed the wording of the Affordable Care Act, in such a way that activists believe healthcare providers could be allowed to discriminate on the basis of gender identity.

On June 12, the U.S. Department of Health and Human Services, finalized a rule modifying the text of the Affordable Care Act. Specifically, the ruling modified Section 1557 of the Affordable Care Act, which protects patients against different forms of discrimination when it comes to healthcare.

The Department of Health and Human Services explains that “The law prohibits discrimination based on race, color, national origin, sex, age, or disability in certain health programs and activities.”

To take out any ambiguity of the understanding of the term “sex” in a biological sense, a 2016 ruling specified that the term “sex” referred to gender identity, rather than biological sex. That meant an individual’s internalized perception of gender, which may be male, female, or none, or a combination of male and female, may be different from an individual’s biological sex.

The 2020 ruling, which will go into effect in August, eliminates this consideration, stating that the Department of Health and Human Services will return to the interpretation that sexual discrimination will be determined according to the biological meaning of sex as male or female.

This move has been criticized by transgender rights activists, who see it as a step further toward restricting basic human rights in the United States.

The executive director of the nonprofit National Center for Transgender Equality, based in Washington, DC, Mara Keisling, has criticized the ruling, proclaimed:

“Even as the catastrophe and the death toll of the COVID-19 pandemic continues and protesters take to the streets, the Trump administration denied equal access to healthcare to transgender people. The new rules are cruel and hateful. It will keep transgender and nonbinary people from being able to get the care they need to live healthy, happy, and productive lives.”

A perception of systematic discrimination

In its official release, the Department of Health and Human Services says that the revised rule will save the department nearly $3 billion over the next 5 years. These savings will mostly come from precluding the distribution of information pamphlets translated into multiple languages.

Roger Severino, director of the Office for Civil Rights at the Department of Health and Human Services pointed out that, “Now more than ever, Americans don’t want billions of dollars in ineffectual regulatory incumbrances raising the costs of healthcare.”

Severino added, “We’re doing our part to roll back unnecessary costs that simply add an economic burden to patients, providers, and insurers alike.”

According to the Williams Institute of the University of California, Los Angeles School of Law, there are an estimated 1.4 million adults in the U.S. who identify as transgender.

A 2017 review published in the journal Current Opinion in Endocrinology, Diabetes, and Obesity indicates that transgender individuals are likely to avoid seeking healthcare due to the perception of widespread discrimination.

Transgender and gender-nonconforming persons, especially teenagers and young adults, also experience a higher risk of anxiety, depression, and attempted suicide.

The World Health Organization has pointed out that, “Transphobia and discrimination are major roadblocks to access to healthcare and can result in an increased risk of health issues unrelated to sexuality or gender.”

The World Health Organization stresses the importance of gender-affirmative healthcare. The term, “gender-affirmative healthcare” includes social, behavioral, psychological, or medical interventions, including gender-reassignment surgery and hormonal treatment. It is believed that gender-affirmative healthcare will affirm and support an individual’s gender identity.

Some believe the new rule is a step back for human rights

However, gender-affirmative healthcare is a tough goal to achieve; a survey-based analysis conducted in 2019 showed that among 223 U.S. healthcare providers, 108 reported no formal education concerning transgender healthcare. However, 111 reported that they did have at least one transgender person under their care.

The researchers, John Wiley and Sons Ltd and The Association for the Study of Medical Education, voiced concern that transphobia is a potential roadblock for gender nonbinary and transgender people in U.S. healthcare.

During an interview on National Public Radio, Lindsey Dawson, associate director of HIV policy at the Kaiser Family Foundation, warned the public that those who confront gender discrimination in healthcare find it difficult to take their case to a court of law, because of the new rule.

“Due to the limited access to litigation, it’s fair to say that the ramifications of the new rule could be significant,” she said.