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New Government Rule Removes Non-Discrimination Protections For LGBTQ In Health Care


The Trump administration today redefined what counts as sex discrimination in health care and health insurance. The change comes in the form of a new rule from the Department of Health and Human Services. Here to explain is NPR health policy reporter Selena Simmons-Duffin.

Hey, Selena.


KELLY: What is this new rule? What's it going to do?

SIMMONS-DUFFIN: Well, a big piece of it has to do with what's called Section 1557 of the Affordable Care Act. That is the part of the law that deals with nondiscrimination. And when the law passed back in 2010, it was prohibited for hospitals or doctors or others to discriminate based on race, color, age, disability or sex. So then a few years later, the Office for Civil Rights at HHS in the Obama administration issued a rule and said, OK, when it says sex is protected, we want to clarify that that includes gender identity. So transgender people were explicitly protected. So today what the Trump administration is doing is reversing that and taking out those references to gender and those explicit protections for transgender people.

KELLY: And why? What is the reason being given for making this change?

SIMMONS-DUFFIN: The Trump administration has said it's reducing confusion that sex means male or female, nothing more. And it's saving around six - sorry - $3 billion by nixing requirements to mail notices of non-discrimination protections.

KELLY: All right, so this new rule, I understand, will take effect in early August, so this summer. What will it mean for people? What actually changes?

SIMMONS-DUFFIN: Well, it means a transgender person could be denied care for a checkup or flu because of their gender identity. Now, this is a hypothetical. It could be that no one discriminates more because of this rule, but critics still worry there could be a chilling effect. Transgender people are already really vulnerable. They're already likely to avoid medical care. In a pandemic, I heard a lot of people finding it concerning that the Trump administration is finalizing a rule that could, in effect, limit access to care for a vulnerable group.

I talked to Mari Brighe. She's transgender and a freelance writer who lives outside Detroit. And she called the rule terrifying. She said she's worried about what it means for coronavirus testing and treatment. Here's what she told me.

MARI BRIGHE: The way it reads to me, people could refuse to collect your COVID specimen because they don't want to touch a trans person.

KELLY: When concerns like that are put to the Trump administration, Selena, what is the response?

SIMMONS-DUFFIN: So the rule was released today without a press call, so I wasn't able to ask that question directly to the Trump administration. But I did talk to a supporter of this rule, Ryan Anderson at the Heritage Foundation, which is a conservative think tank. And here's what he said.

RYAN ANDERSON: I think that is a valid concern. We want to make sure that people, regardless of their gender identity, have access to medical care. That's a very reasonable concern.

SIMMONS-DUFFIN: But he still thinks this rule is necessary as a reset of Obama-era executive overreach. And what he'd like to see is a new law from Congress that protects transgender people from general discrimination but also protects providers who don't want to provide gender transition-related care, for example.

KELLY: And just real briefly, like a lot of rules and executive actions from the Trump administration, is this likely to end up in the courts?

SIMMONS-DUFFIN: Absolutely. We're very likely to see lawsuits trying to block this rule or put it on hold.

KELLY: All right, NPR's Selena Simmons-Duffin, thank you.

SIMMONS-DUFFIN: Thank you. Transcript provided by NPR, Copyright NPR.

Selena Simmons-Duffin reports on health policy for NPR.