This week, language on the Department of Health and Human Services’ (HHS) website – which assured the public that the agency would protect individuals from sex discrimination in health care – was surreptitiously removed.
This change raises red flags about whether the Trump administration will fulfill its obligation to enforce the nondiscrimination provision of the Affordable Care Act (ACA) as it should.
The National Women’s Law Center has taken action. We filed a Freedom of Information (FOIA) request with the Trump administration in order to collect information to explain why the language was removed and to ensure that the Trump administration is doing its job as required by the law.
Here is what you need to know about the nondiscrimination provision of the ACA and why NWLC has taken action:
The nondiscrimination provision of the ACA ensures that individuals will not be refused health care or forced to receive lower quality care because of their sex. The nondiscrimination provision of the Affordable Care Act (ACA) – commonly referred to as “Section 1557” – protects individuals from discrimination on the basis of race, color, national origin, sex, age, and disability in health programs or activities that receive federal funding.
Last May, HHS issued a regulation clarifying that this protection includes discrimination based on sex stereotyping, gender identity, and termination of pregnancy. In May 2016, after considering extensive public input, HHS – one of the federal agencies charged with enforcing this law – issued a final rule stating that discrimination “on the basis of sex” under Section 1557 “includes, but is not limited to, discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping, and gender identity.”
This provision is critically important to women and LGBTQ individuals. This is the first federal law to broadly bar sex discrimination in health care. This law prohibits health care entities from turning individuals away or giving them lower quality health care simply because of their sex. For example, a clinic cannot turn a man away from a health care clinic simply for acting in a way that the clinic staff believes is “effeminate” based on stereotypes about the way he talks or dresses, nor can a health care provider offer less aggressive treatment for women based on gendered understandings of heart disease.
Some have sued to try and block this important protection, and a court agreed to block some parts of it. In August 2016, 5 states and a group of health care providers challenged the regulation in a Texas court known for taking extreme action against antidiscrimination laws. In a radical move, that court entered an injunction blocking the portions of the regulations protecting individuals from discrimination based on “termination of pregnancy” and “gender identity.”
The Obama Administration pledged to continue enforcing the prohibition on sex discrimination. Importantly, while these two portions of the regulation are blocked, HHS is still obligated to enforce the provisions barring all other forms of sex discrimination under the law. After the injunction, the Obama administration made clear that it would continue to enforce the prohibition of all forms of sex discrimination, with the exception of the two forms blocked by the court, to the full extent of the law.
The Trump administration has removed this promise from HHS’s website. This week, the following language was deleted from HHS’s website about the non-discrimination provision:
“Areas of sex discrimination that HHS OCR may continue to enforce include: harassment based on sex and allegations related to sex stereotyping that do not involve gender identity claims, as well as other forms of discrimination based on sex other than gender identity or termination of pregnancy.”
NWLC has taken action to ensure this change is not yet another attack by the Trump administration in their assault on women and LGBTQ folks, specifically in health care. It is no secret that the Trump administration and some Members of Congress have been working to undermine the ACA and other health care protections for women and LGBTQ folks. Even though President Trump said he will “move on” from repealing the health care law, there are many ways for the administration to continue undermining the ACA and health protections for women and LGBTQ folks. The removal of language from the HHS website may be a signal that the administration has found another way to undermine these protections – by refusing to fully enforce the ACA’s nondiscrimination provision. But NWLC is on it to ensure that the Trump administration fulfills its duties under the law.