The United States government has modified the text of the Affordable Care Act, in a move that leaves room for healthcare providers to discriminate on the basis of gender identity.
On Friday, June 12, the U.S. Department of Health and Human Services (HHS), under the administration of President Donald Trump, has finalized a rule affecting the text of the Affordable Care Act.
More specifically, the ruling affects Section 1557 of the Affordable Care Act, which enshrines the protection of patients against various forms of discrimination in the context of receiving healthcare.
The HHS explain that “The law prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities.”
To remove any loopholes resulting from an equivocal understanding of the “sex” category, a 2016 HHS ruling under the administration of former President Barack Obama specified that the term referred to gender identity, which “means an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.”
The new 2020 ruling — due to go into effect in August — removes these considerations, stating that the HHS will return “to the government’s interpretation of sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.”
This move is heavily criticized by transgender and human rights activists, who flag it as one step further down a slippery slope toward curtailing basic human rights in the U.S.
Mara Keisling, executive director of the National Center for Transgender Equality — a nonprofit social equality organization headquartered in Washington, D.C. — has slammed the ruling, noting that:
“Even as the death toll and catastrophe of the COVID-19 pandemic grows and people take to the streets, the Trump administration remains focused on denying equal access to healthcare to transgender people. […] The new rules released [on June 12] are hateful and cruel and will keep people from being able to get the care they need to live happy, healthy, and productive lives.”
Context of systematic discrimination
In the official release, the HHS claim that the rule will save $2.9 billion over 5 years, chiefly by avoiding the distribution of additional informational material translated into several languages.
“Now more than ever, Americans do not want billions of dollars in ineffective regulatory burdens raising the costs of their healthcare,” claimed Roger Severino, director of the Office for Civil Rights at the HHS.
“We are doing our part to reel in unnecessary costs that add economic burdens to patients, providers, and insurers alike,” he added.
According to data from the Williams Institute of the University of California, Los Angeles School of Law, an estimated 1.4 million U.S. adults identify as transgender, and it is possible that the actual number is even greater.
A review published in 2017 in the journal Current Opinion in Endocrinology, Diabetes and Obesity shows that according to existing research, transgender people are often likely to miss out on healthcare due to widespread stigma and discrimination.
Transgender and gender nonconforming individuals — particularly adolescents and young adults — also have a high risk of developing depression and anxiety and of attempting suicide.
The World Health Organization (WHO) have pointed out that for transgender individuals, “Transphobia and discrimination are major barriers to healthcare access and can result in increased risk of health concerns unrelated to gender or sexuality.”
For this reason, the WHO stress how important the implementation of gender-affirmative healthcare is. This term refers to “social, psychological, behavioral or medical (including hormonal treatment or surgery) interventions designed to support and affirm an individual’s gender identity.”
New rule a step back for human rights
But this is a difficult aim to achieve — globally and particularly in the U.S. A survey-based analysis summarized in the journal Medical Education in 2019 showed that among a cohort of 223 U.S. healthcare providers, 108 (48.4%) reported having no formal education regarding transgender healthcare.
Despite this, 111 (49.7%) of the respondents said that they had at least one transgender individual under their professional care.
The researchers who conducted the survey and analysis expressed concern that transphobia is likely a crucial stumbling block in U.S. healthcare.
The new rule affecting the Affordable Care Act could further cut off transgender and gender-nonconforming people from accessing the care that they need.
Speaking to National Public Radio (NPR), Lindsey Dawson, associate director of HIV policy at the Kaiser Family Foundation, warns that people who encounter discrimination in healthcare settings would find it hard to dispute their case in a court of law, as a result of the new HHS rule.
“Because of limited access to litigation, I think that it’s fair to state that the ramifications [of the new rule] could be pretty significant,” she said.
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