Posted by 13 June 2020
This week, the Department of Health and Human Services (HHS) rewrote an Obama-era regulation that expanded the definition of “sex” under federal anti-discrimination law. The effect of this rule change is to remove protections for transgender individuals in health insurance purchases, but the Trump Administration says this is just a return to the original meaning of the law.
The regulation affects nondiscrimination protections in the Affordable Care Act, or Obamacare. This law prohibits insurance companies from discriminating against individuals on the basis of, among other things, “sex.” This language is similar to language in other federal anti-discrimination laws. In 2016, the Obama Administration issued a rule that expanded the protections under that law to include gender identity.
At the time, this move was controversial. Those opposed to it argued that it reversed the meaning of federal anti-discrimination rules. These critics pointed out that the protection of sex under federal law never protected individuals who went through a gender transition. However, the Obama Administration said that gender identity was an integral part of someone’s sex, so their expanded interpretation was legally valid.
The Trump Administration re-wrote the 2016 regulation to return its definition of “sex” to the earlier understanding of what the law meant. HHS officials argued that this was necessary to reverse the Obama Administration’s overreach. They argue that if Congress wants to protect transgender individuals from discrimination, Congress should write the law to reflect this, not use executive branch authority to change the law.
HHS action has come under fire from many people, however. They say the Trump Administration of reversing important protections for transgender individuals. They accuse the administration of anti-transgender bias, and have vowed to fight the rule change in court.
Do you think that federal laws banning sex discrimination also ban discrimination against transgender individuals?