The leaked HHS memorandum and transgender health rights

At the end of last month, the New York Times reported on a leaked internal memorandum from Health and Human Services proposing to narrowly define “sex” as “biological sex,” a move made with the purpose of excluding transgender people from a variety of civil rights protections.

The memorandum stirred concerns about the future of Section 1557 of the Affordable Care Act, which provides for an anti-discrimination cause of action in health care settings and has been the basis of a number of private lawsuits by transgender patients. The HHS memorandum reinforces that the Trump administration plans to reinterpret Section 1557 to stem this litigation.

Section 1557 incorporates its protections from existing civil rights statutes, including Title IX’s provision against discrimination “on the basis of sex.” While, as the New York Times article notes, an Obama-administration rule expressly interpreting “on the basis of sex” to include gender identity has been stayed by a federal court, patients have continued to sue for protections based on the original statute—with some success. As Katie Keith notes in her roundup on Health Affairs, two federal judges ruled in favor of transgender patients seeking protection under 1557 in September, just one month before the HHS memo leaked.

The Trump administration’s expected reinterpretation of Section 1557 to exclude transgender patients would likely shift the momentum of advocates to a defensive posture. Assuming HHS follows the procedural requirements of the Administrative Procedure Act in promulgating its new rule, advocates may need to resort to substantive challenges of the agency’s interpretation of the law under the Chevron framework. And while Supreme Court precedent suggests that “on the basis of sex” definitionally includes “sex-stereotyping”—and, consequentially, restrictive notions of gender—this area of civil rights law as applied to transgender patients remains relatively uncharted territory.

The future of Section 1557 as a private cause of action for transgender patients could thus be stymied, at least under the current administration. Some federal causes of action available to transgender individuals who face discrimination in health care settings remain intact.

Prior to the ACA, for instance, insurers routinely denied patients coverage on the basis of their transgender identity. Transgender patients are now protected from this practice under the pre-existing conditions provisions of the Affordable Care Act.

And in at least one court decision, a federal judge has ruled that transition services must be covered as “medically necessary care” under the Medicaid Act. But while these laws may chip away at discriminatory practices, they do not provide the sweeping and historic protections made available under Section 1557.

Alexandra Slessarev

Alexandra Slessarev graduated from Harvard's joint JD/MPH program in 2019, and she will be clerking for Judge Ronald Lee Gilman on the 6th Circuit beginning in August 2019. Her Petrie-Flom fellowship paper was entitled "Curbing Pharmaceutical Detailing Practices in the Opioid Era." Alex's public health research interests include maternal and reproductive health, state-level Medicaid implementation, and the intersection of health and the environment. Prior to starting her dual-degree program, Alexandra spent a year working as a research assistant at the Bixby Center for Global Reproductive Health at the University of California, San Francisco, where she worked on several projects related to long-acting reversible contraception provision and education.

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