HHS Rule Will Reverse Nondiscrimination Protections in Health Care for Over 1.5 Million Transgender People

Author: The Williams Institute
Published: Monday 18th May 2020
Summary: HHS expected to announce final rule that reverses federal protections prohibiting discrimination based on gender identity in health care.


The U.S. Department of Health and Human Services (HHS) is expected to announce a final rule in the coming weeks that reverses federal protections prohibiting discrimination based on gender identity in health care.

The regulation could create added barriers to accessing health care for an estimated 1.4 million adults and 150,000 youth who identify as transgender in the U.S., including the significant number who have underlying health conditions that put them at particular risk of serious illness related to COVID-19.

Recent research from the Williams Institute found that an estimated 320,000 transgender adults have underlying health conditions that could increase their risk for COVID-19-related illness. This includes;

In addition, an estimated 217,000 transgender people are age 65 and older.

The Williams Institute at UCLA School of Law, a think tank on sexual orientation and gender identity law and public policy, is dedicated to conducting rigorous, independent research with real-world relevance.

"Our research finds that transgender people experience health disparities compared to cisgender people and often lack access to health care," said Jody L. Herman, Scholar of Public Policy at the Williams Institute. "They also face persistent discrimination in health care settings, which is a concern for many transgender adults."

"The changes to this rule could further harm transgender people's health care access at a time when they face serious challenges related to COVID-19," said Herman.

No federal statute expressly protects transgender people from discrimination in health care. The new rule will remove from HHS regulations protections that were guaranteed under the agency's former interpretation of Section 1557 of the Affordable Care Act. Section 1557 bans sex discrimination in federally funded health care. The original regulation stated that the law's ban on sex discrimination applies to discrimination based on sex stereotyping and gender identity, consistent with numerous court decisions.

The Supreme Court is poised to address the breadth of sex discrimination protections in employment discrimination laws during its current term, which could affect the validity of the new HHS interpretation.


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