The U.S. Department of Health and Human Services (HHS) has published a proposed rule removing gender-affirming treatment from essential healthcare benefits covered by insurance plans under the Affordable Care Act (ACA), the 2010 federal law requiring healthcare providers to cover a wide range of necessary care. The public has until April 11 to leave a comment opposing the proposed rule change.
On February 20, the Trump administration’s HHS and Office for Civil Rights (OCR) announced the Rescission of “HHS Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy.” The proposal would revoke a guidancem issued on March 2 2022 by the administration of then-President Joe Biden, that applied civil rights protections and patient privacy laws to recipients of gender-affirming care.
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The proposed rule change would revoke Section 1557 of the ACA, Section 504 from the Rehabilitation Act and Americans with Disabilities Act (ADA), and the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
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Section 1557 prohibits discrimination based on sex — including gender identity — in health programs receiving federal aid. Section 504 qualifies gender dysphoria as a disability, meaning a refusal to provide treatment for the condition could constitute unlawful discrimination. HIPPA prohibits health providers from disclosing patient information without patient approval.
Public comments on the proposed revocation are open until April 11. As of Monday afternoon, the proposal has nearly 4,500 public comments. For this ruling to be passed, it must go through the full process of federal rulemaking under the Administrative Procedure Act, which includes opening it to public comment. This proposal is likely to face challenges from civil rights advocacy groups, medical organizations, and trans-sanctuary states before being voted on.
The proposed revocations were issued in response to two of Trump’s executive orders: EO 14187 threatened to end federal grants to hospitals providing gender transition treatments to individuals under the age of 19. EO 14168 ordered the federal government to end its legal recognition and protection of trans people.
The revocation of medical protections would undoubtedly impact over 200,000 transgender people across the nation and would effectively revoke financial assistance from trans people who rely on the ACA to afford their transitional healthcare. It is especially troubling when it impacts one of the groups most susceptible to poverty, with a study from the Human Rights Campaign finding that almost three in 10 trans adults are living in poverty.
Attempts to impose Trump’s orders have been met with resistance from Democratic officials and private citizens pointing out the unconstitutional nature and suing the administration to prevent their enforcement. This has resulted in a federal judge blocking enforcement of EO 14187 nationwide. The presidential administration seems keen on finding ways to circumvent this ruling, as it has with other recent court rulings declaring its actions as unconstitutional and illegal.
The administration’s proposed rule change comes a week after a three-judge panel lifted Ohio’s ban on gender-affirming care for minors. The lifting of the ban was made possible by a 2011 reading of a state amendment opposing the ACA. The amendment said the state or the federal government cannot prohibit the sale of healthcare. The law protects healthcare coverage that includes gender-affirming care, the judges ruled.
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