The Department of Health and Human Services today adopted a final rule that rolls back health care anti-discrimination coverage in federally supported activities and programs. In 2016 by the Obama Administration expanded protections for transgender individuals and for those who had accessed abortion services. The 344-page adopting Release (
full text) reversing those changes explains:
The 2016 Rule’s definition of
discrimination “on the basis of sex” encompassed discrimination on the basis of gender identity
(“an individual’s internal sense of gender, which may be male, female, neither, or a combination
of male and female”). In line with that definition, the 2016 Rule imposed several requirements
regarding medical treatment and coverage on the basis of gender identity. The same definition
also encompassed discrimination on the basis of “termination of pregnancy” without
incorporating the explicit abortion-neutrality language of 20 U.S.C. 1688 (which some
commenters referred to as the Danforth Amendment) in Title IX, and it imposed a high burden of
proof on providers to justify offering gynecological or other single-sex medical services.
All of these are essentially legislative changes that the Department lacked the authority to
make.
Responding to comments submitted on the Rule in its proposed form, the Release says in part:
The U.S. government has taken the position in Harris and other relevant litigation that discrimination “on the basis of sex” in Title VII and Title IX does not encompass discrimination on the basis of sexual orientation or gender identity. The Department shares that position and is permitted to issue regulations on the basis of the statutory text and its best understanding of the law and need not delay a rule based on speculation as to what the Supreme Court might say about a case dealing with related issues....
The Department does not condone the unjustified denial of needed medical care to anyone, and believes that everyone, regardless of gender identity or sexual orientation, should be treated with dignity and respect. The Department must interpret Congress’s purpose in passing the ACA by reading that statute’s plain text. The ACA sought to expand access to healthcare and healthcare coverage through some means but not others: in particular, Congress saw fit to incorporate into the ACA certain nondiscrimination protections, and not others. For example, in the unlikely event that a healthcare provider were to deny services to someone based solely on his or her political affiliation, the Department would not be able to address such denial of care under Section 1557. Under this final rule, OCR is committed to no less than full enforcement of the prohibitions on discrimination that Congress included in Section 1557, without exceeding the statutory text. Unlike other bases of discrimination, the categories of gender identity and sexual orientation (as well as political affiliation) are not set forth in those statutes.
Bloomberg Law reports on the new rule.
