The Biden administration proposed a rule Monday to expand federal healthcare nondiscrimination protections for transgender people that is expected to reignite a conflict over religious freedom for healthcare professionals.
The proposed rule formally restores language in Obamacare, or the Affordable Care Act, that protects patients in all federally supported healthcare programs from discrimination based on gender identity. It explicitly reverses a Trump administration-era rule that narrowed the scope of the nondiscrimination provision of the law, Section 1557, to define sex as biological sex rather than encompassing gender identity. It would ensure specific health insurance coverage protections for transgender individuals.
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The proposed rule is expected to generate religious freedom disputes over concerns that healthcare providers who morally or religiously object to providing transgender healthcare services, such as puberty blockers and gender reassignment surgery, would not be legally protected if they refused. The proposal was expected to come out in April alongside a second rule that stopped insurers from limiting coverage of essential health benefits, the list of services that Obamacare plans must cover, based on gender identity in treating gender dysphoria. The second rule was finalized, but the one concerning Section 1557 was delayed because the Department of Health and Human Services decided it was “prudent” to address the discrimination issue at a later time.
The Biden administration said the proposed rule is meant to align Obamacare’s nondiscrimination language with a 2020 Supreme Court decision in Bostock v. Clayton County, in which the justices ruled an employer who fires a worker based on their sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964.
“It is all the services and programs that we administered at HHS that would have that protection attached to them,” said HHS Secretary Xavier Becerra. “We believe that this will restore and strengthen civil rights protections for patients and consumers throughout the country. It will promote gender and health equity, especially in communities that have often been deprived of some of those protections.”
Becerra said he expects the rule to garner lawsuits alleging infringement on religious liberties once it has been finalized, which is not expected to come until next year.
“If history is any indicator, I think there will be, like, hundreds of thousands of comments on this regulation, and then it will get finalized, and then it will be litigated,” said Katie Keith, a health law and policy expert at the Georgetown University Law School. “I would expect folks to be making the same types of arguments that we’ve seen in the previous round, both in comments and in court.”
The rule broadly covers insurers, as well as healthcare professionals, who receive federal money, opening the door for religious providers to challenge the rule in court by asserting that it amounts to a mandate on them to provide care to which they morally object.
In 2016, for instance, a lawsuit filed by the Catholic hospital system Franciscan Alliance, a Catholic medical group, a Christian medical association, and five states argued that Obamacare’s nondiscrimination language forced medical professionals and facilities to provide gender transition services against their medical judgment and religious beliefs. They also asserted that the rule prohibits discrimination on the basis of “termination of pregnancy” without providing an exclusion for abortions, therefore requiring coverage of abortions.
“A lot of this stuff gets construed as coverage mandates or care mandates, but that’s not really how they work,” Keith said. “The 2016 rule was that you can’t discriminate against someone who has a medical history of abortion. Like, if I’ve had an abortion in the past, you can’t turn me away for care. It had nothing to do with having an abortion, which is clearly protected under all these federal conscience rules.”
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HHS officials maintained that the restoration of protections based on gender identity would not violate people’s religious liberties, though details about the agency’s means of addressing objections based on religion were vague. Becerra told reporters, “We will aggressively protect people’s rights, and that includes religious conscience protections that are in place under the law so that people can exercise those.”
