On Friday June 12, 2020, the United States Department of Health and Human Services released long-expected regulations eliminating existing protections for transgender individuals accessing healthcare or using health insurance. The announcement came in the middle of Pride Month and on the fourth anniversary of the mass shooting in the Pulse nightclub in Orlando, Florida.
These regulations will affect transgender individuals in the 27 states that do not have state-level protections. Transgender Marylanders will also need to be aware of the legal protections available in other states when traveling.
Transgender Individuals Are Protected under Maryland Law
Regardless of what happens at the federal level with Section 1557, however, LGBTQ+ Marylanders remain protected by state law. Earlier this year, in large part because of advocacy by FreeState Justice, the Maryland General Assembly passed a pair of laws that prohibit discrimination in the provision of healthcare or in health insurance. The laws, which are the first comprehensive healthcare and health insurance non-discrimination statutes in Maryland, expressly prohibit discrimination on the basis of both sexual orientation and gender identity.
If the new Section 1557 regulations do ultimately go into effect, however, transgender Marylanders will not be able to take these protections with them when they travel to other states. For more information about laws in other states, see the Movement Equality Project’s page on healthcare laws and policies.
The Regulations Would Roll-Back Obama-Era Protections of Trans Healthcare
While the Affordable Care Act of 2010, also known as Obamacare or the ACA, is most known for expanding access to health insurance through the creation of insurance marketplaces and expanded Medicaid eligibility, it also created the first federal nondiscrimination rules applying to healthcare and health insurance. Section 1557 of the ACA prohibited healthcare providers and health insurance companies receiving federal funds from discriminating on the basis of a number of specified classes, including race, national origin, sex, and disability.
While Section 1557 did not expressly include sexual orientation or gender identity in the list of protected classes, the Obama administration broadly read the term “sex” to include them in all or most circumstances. This reading was consistent with federal court precedent in a number of judicial circuits.
In 2016, the administration issued regulations codifying its interpretation. These regulations created express protections for transgender individuals, including (but not limited to) a requirement that providers and insurance companies treat individuals in line with their gender identity, barred denials of care or insurance coverage for transgender individuals on the basis of treatment usually only being available to one sex, and prohibited blanket prohibitions on coverage for transition-related care.
The 2016 regulations had a dramatic impact on the transgender community across the United States, greatly increasing access to healthcare, especially transition-related care. Prior to 2016, it was very common for insurance plans to exclude all coverage for transition-related care, such as hormone replacement therapy or gender confirmation surgeries.
Under the new regulations, however, the Trump administration’s Department of Health and Human Services (HHS) has rescinded the prohibitions on discrimination against transgender individuals and the requirement that insurance plans cover transition-related care. The regulations also restrict the ability to make discrimination claims more generally, incorporate religious exemptions, and delete references to sexual orientation and gender identity from Medicare and Medicaid regulations.
The Regulations Are Not in Effect Yet
The new regulations will go into effect 60 days after they are published in the Federal Register, which is expected to happen within the next several days. In the absence of further action, the regulations will likely go into effect in mid-August 2020.
There are two notable ways in which the regulations could be delayed or stopped, however: 1) Congress could disallow it under the Congressional Review Act or 2) the regulations could be challenged in court.
Under the Congressional Review Act, the US Congress may disallow agency regulations through a joint resolution of both the House of Representatives and Senate. The joint resolution, however, must be enacted within a window of 60 legislative days from when the draft regulations are submitted to Congress. (Calculation of legislative days is complicated, but, in general, only days in which the US Senate meets count; as a result, the regulations may go into effect while Congress still has time to disallow them.)
Votes on CRA resolutions are subject to a fast track procedure that is not subject to filibuster in the Senate. At least one Republican, Maine Senator Susan Collins, has stated she would work to overturn the regulations, potentially signalling she might support a CRA resolution.
Unfortunately, however, even if passed by both the House and Senate, a Congressional Review Act resolution to disallow the Department of Health and Human Services’ regulations would still be subject to a presidential veto. Given the fact that the regulations were adopted by his administration, it is highly likely that President Trump would veto a CRA regulation and it is in turn equally unlikely that a two-thirds majority in each house would vote to override a presidential veto. Because of this, the CRA process is highly unlikely to be successful.
The other way the regulations could be delayed or stopped is through a legal challenge. Courts may set aside federal agency regulations under limited circumstances, such as where an agency exceeded its statutory jurisdiction, the regulations are not supported by substantial evidence, or they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Shortly after the regulations were announced on Friday, the Human Rights Campaign (HRC) announced that it planned to challenge the regulations in court. According to a statement by HRC, the LGBTQ+ rights organization “will argue that the removal of protections against sex stereotyping and gender identity exceeds the administration’s authority to define sex discrimination under the ACA and grossly undermines the law’s primary goal of eliminating barriers and broadly expanding access to healthcare and health education programs.” Additional challenges are likely to come from other organizations, as well as state governments.
What about the Supreme Court Decision in Bostock v. Clayton County, Georgia?
On Monday June 15, 2020, the Supreme Court ruled 6-3 in Bostock v. Clayton County, Georgia that Title VII of the Civil Rights Act of 1964 prohibits employers from firing an employee simply because of their sexual orientation or gender identity. The Supreme Court decision did not directly address Section 1557 of the Affordable Care Act or the regulations implementing it. There is a strong chance, however, that future court decisions will apply the Bostock holding to other federal nondiscrimination laws.
What You Need to Know
While the new HHS regulations could hurt the ability of transgender individuals to receive quality medical care and have transition-related care covered by insurance in many parts of the United States, the regulations have not yet gone—and may never go—into effect. Even if they do, transgender Marylanders are protected by state law that prohibits discrimination in healthcare and health insurance.