See these resources for more information about your rights during COVID-19:
- A Know Your Rights Guide for Transgender People Navigating COVID-19 (PDF) (Documento en inglés)
- Una guía para que las personas transgénero navegando la COVID-19 conozcan sus derechos (PDF) (Documento en inglés)
Actualización 2020 abril
The Trump Administration has announced that it is planning to roll back an important regulation about the Health Care Rights Law, the part of the Affordable Care Act (ACA) which protects transgender people from discrimination in health care and insurance coverage. Many people are concerned about what this change to the HCR Law means for them or for their transgender loved ones. The most important thing to remember is that even if the Trump Administration rolls back the regulation, health care discrimination against transgender people will still be illegal, although it might be harder in some ways to enforce your rights.
In April 2020, as the United States continues to be the global epicenter of an unprecedented public health crisis, the Trump Administration said it was preparing to issue a final rule seeking to obscure and weaken the law's protections.
What is the Health Care Rights Law?
The Health Care Rights Law (HCRL) is Section 1557 of the Affordable Care Act (the ACA, or Obamacare), which prohibits discrimination in health coverage and care. It bans discrimination on the basis of race, color, national origin, sex, age, and disability in health programs and activities that receive federal funding. This includes most health facilities, like hospitals or doctors’ offices, and most health insurance companies.
What is the regulation that the Trump Administration plans to roll back?
Federal agencies often adopt regulations to explain what different laws mean. In 2016, the Department of Health and Human Services (HHS) adopted a rule explaining what the Health Care Rights Law means and how it plans to enforce it. Regulations like this one don’t create new protections that weren’t already there or change the law, but they do provide important clarifications about what the law requires.
One of the key things this 2016 regulation clarified is, when the HCR Law prohibits sex discrimination in health care, this includes anti-transgender discrimination. The regulation also clarified important parts of the law related to discrimination based on race, national origin, disability, and more. For more information, read NCTE’s FAQ about this regulation.
This regulation made it easier for transgender people to enforce their rights under the Health Care Rights Law and get access to the health care they need. But it is important to remember that even if HHS hadn’t adopted this regulation, anti-transgender discrimination in health care would have still been illegal under the HCR Law. Numerous courts over nearly two decades have said that federal sex discrimination laws prohibit discrimination against transgender people. HHS simply recognized the existing state of the law and formally clarified that in a regulation.
What happened to the lawsuit challenging the 2016 regulation?
After the regulation was adopted, several state officials and organizations sued HHS, saying that the regulation needed to be overturned. They hand-picked a judge in Texas who was known for ruling against the Obama Administration and asked him to temporarily block HHS from enforcing parts of the regulation while the case went forward. As they hoped, this judge ignored the vast majority of other courts and, in December 2016, ordered HHS to temporarily stop enforcing parts of the regulation, including the parts protecting transgender people. In a that specifically highly unusual move, the Trump Administration refused to appeal the judge’s ruling, and told the judge they would work to roll back the 2016 regulation.
For almost two years, the judge put the case on hold while the Trump Administration worked on the new regulation. In October 2019, the Texas district court again ordered HHS not to enforce the portions of the 2016 rule that relate to anti-transgender discrimination. This ruling doesn't change the requirements of the ACA or other federal or state laws. At the same time, we have seen several other cases move on this issue. All other federal courts to analyze the the issue have agreed that the Health Care Rights Law protects transgender people from discrimination.
In October 2019, the Supreme Court agreed heard arguments in a case about whether federal empleo discrimination laws prohibit discrimination on the basis of someone being transgender. That decision could influence how courts and government agencies interpret other laws, such as the Health Care Rights Law. Learn more about it on NCTE's Medium post.
What will happen with the regulation now?
In 2019, the Trump Administration published a formal proposal to roll back numerous provisions of the 2016 regulation, drastically cutting back its interpretation of the law's protection. The rule would remove all recognition by HHS that the law prohibits anti-transgender or anti-LGBTQ bias. It would also claim to eliminate requirements that hospitals and health plans notify patients of their right to receive information in their primary language, or to file a grievance if they've been mistreated.
In April 2020, the Trump Administration made clear it was preparing to finalize this rollback.
This means that for the foreseeable future, HHS will not take any action to help people who have faced anti-transgender discrimination. HHS will not investigate complaints of anti-transgender discrimination for the time being, but transgender people can still file lawsuits themselves and those lawsuits will continue moving forward in the courts. In many states, transgender people can also file complaints with their state civil rights agency.
Am I still protected from health care discrimination?
Yes. No matter what the Trump Administration says or does, the Health Care Rights Law is the law of the land, and most courts have said it protects transgender people. Only Congress has the power to change the law by repealing the ACA.
In addition, many state laws prohibit discrimination in health care, and discrimination by the government violates the U.S. Constitution.
However, the Trump Administration’s actions will likely cause confusion for many patients, providers, and insurance companies, and it could lead to more anti-transgender discrimination.
What should I do if I face discrimination in health care?
If you have faced discrimination by a health care provider, insurance company, or another health program, reach out to an LGBT-friendly legal organization to get help exploring your options. While NCTE does not take clients or provide direct legal services, you can find contact information for organizations that do aquí.
Also, remember that many states have their own laws and regulations that protect transgender people from discrimination in health care and insurance coverage. If you face discrimination, you may be able to file a complaint with your state’s human rights agency or somewhere else—see our Conoce tus Derechos resource for more information.