1. Zolot, Joan PA


Transgender individuals and women who've terminated pregnancy would lose explicit protections under 'sex discrimination' umbrella.


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A newly proposed revision to the Affordable Care Act (ACA) by the Department of Health and Human Services (HHS) would eliminate explicit protections against discrimination for transgender and nonbinary patients and for women who have had abortions. The revision would affect Section 1557 of the ACA, which addresses civil rights and "prohibits discrimination on the basis of race, color, national origin, sex, age, or disability" in health programs funded or administered by the HHS or that are part of the health insurance marketplace.

Figure. Photo courte... - Click to enlarge in new window Photo courtesy of the Gender Spectrum Collection.

The proposed revision is controversial. The American Civil Liberties Union (ACLU) issued a statement describing the HHS's proposal as "an attempt to roll back nondiscrimination protections for transgender and nonbinary people, as well as all women and other communities historically marginalized in health care."


The ACLU's opposition centers on the HHS's retreat from the expanded definition of sex that was undertaken in the last year of the Obama administration. The HHS's May 2016 revised definition of discrimination included discrimination based on "sex stereotyping, gender identity, and termination of pregnancy," with "gender identity" defined as "one's internal sense of being male, female, neither, or a combination of male and female." The definitional change conferred explicit protections for transgender and nonbinary individuals and women who had abortions, but its effect was short lived. Several states and private health care providers filed legal challenges, and U.S. district courts in two jurisdictions quickly blocked enforcement of the "gender identity" and "termination of pregnancy" provisions.


The HHS did not appeal the rulings, and in its current proposed revision, acknowledged that the department in 2016 had "exceeded its authority under Section 1557 [and] adopted erroneous and inconsistent interpretations of civil rights laws" by expanding the definition of sex discrimination.


Another revision proposed by the HHS is elimination of the requirement in Section 1557 regarding written notification of language-assistance services for patients with limited English proficiency or who are hard of hearing. Current regulations require health care entities to include nondiscrimination and other notices in 15 common foreign languages in all significant publications and in mailings larger than a postcard to members of the public. The HHS estimates that eliminating the notice requirements will yield $3.6 billion in health care cost savings over the first five years.


Under the proposed revisions, the HHS would continue to enforce sex discrimination and other civil rights protections as originally codified and would also promote physical access and assistance for people with language, visual, or hearing difficulties. Current requirements for health care organizations to provide translators and interpreters for patients would remain in effect.


Louise Melling, ACLU deputy legal director, characterized the current proposed revision as an attack by the Trump administration on "historically" neglected patients. "Transgender and nonbinary people experience staggering rates of discrimination from health care institutions and providers," she said in a statement. "The proposed changes would also strip protections from people based on reproductive health care decisions, including whether they have had an abortion." According to data compiled by the Guttmacher Institute, nearly one in four women in the United States will have an abortion by age 45.


The proposed rule revisions are posted on the Federal Register at Zolot, PA