Since its passage, opponents have tried to repeal the Affordable Care Act and failed. President Trump’s administration has taken many steps toward undermining the health law that brought access to health insurance for 22 million people. The ACA worked to reduce racial disparities in access to insurance, and enacted consumer protections that have helped countless families. Our administrations latest effort undercuts a rule that explicitly protected transgender people by prohibiting health providers from discriminating based on someone’s gender identity.

The Affordable Care Act prohibits discrimination based on race, color, national origin, disability, age, and sex by health care providers who receive federal funding or participate in the insurance Marketplace. In 2016, the Obama administration clarified that the definition of “sex” includes gender identity, sex stereotyping, and termination of pregnancy. According to the National Women’s Law Center, this meant health programs “cannot treat people inequitably because they are pregnant, have had an abortion, are unmarried, are transgender, are gay or lesbian, or don’t meet traditional sex stereotypes.”[i] This made it easier for transgender people and others included in definition to uphold their rights under the ACA and more likely to get the health care they needed.

According to the National Center for Transgender Equality, “numerous courts over nearly two decades have said that federal sex discrimination laws prohibit discrimination against transgender people. HHS (Health and Human Services under the Obama administration) simply recognized the existing state of the law and formally clarified that in a regulation.[ii]”

The Trump administration’s new rule tries to undercut these protections by reversing course and creating a much narrower definition of sex, which excludes transgender rights. It also rolled back provisions that would have required information to be available in people’s language of choice and notices about how people who have been discriminated against could file complaints. This change will likely make it harder for some transgender people to get the health care they need or enforce their rights if they face discrimination.

These changes have been finalized despite once-in-a-generation challenges caused by the COVID-19 pandemic and when quality health coverage for everyone is more important than ever. All people need to be able to get testing and treatment for COVID-19 and have access to necessary medical care. The federal government should be working hard to make sure everyone, everywhere has coverage. Instead, they are trying to make it easier for health care providers to discriminate against people.

This is the latest in a long list of actions the Trump administration has taken that have weakened the impact of the ACA or chipped away at the ways in which the Affordable Care Act protects access to health care. Some examples include effectively eliminating the requirement that people have insurance, cutting public awareness and navigator funding, shortening the open enrollment period, and lifting restrictions on short-term health insurance that doesn’t have to cover essential health benefits.

In addition, Trump’s Department of Justice supports a lawsuit, currently in the hands of the Supreme Court, that could completely invalidate the health law. You can read more about that case and what’s at stake for Wisconsin here.

This latest effort by the Trump administration will likely be challenged in court and it’s important to note that, according to the National Center on Transgender Equality and others, anti-transgender discrimination is still illegal under the ACA regardless of what the current administration says. Lastly, the Supreme Court’s recent decision ruling that prohibitions against sex discrimination include rights of LGBTQ people further undercuts the administration’s new rule on the health care rights law.

William Parke-Sutherland

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[i] https://nwlc.org/wp-content/uploads/2015/11/General-1557-Factsheet-May-2016.pdf

[ii] https://transequality.org/HCRL-FAQ