Statement: Donald Trump has “stripped away discrimination protections for LGBTQ patients under the Affordable Care Act.”
With just a few weeks until voting begins in the presidential election, Democratic Vice President Kamala Harris wants voters to be clear about where she disagrees with former President Donald Trump on LGBTQ+ rights. “If Donald Trump wins in November, he will again implement policies that target the LGBTQ community,” VP Harris said in a video shared on X on August 11. “Think about what he did in his first term. He took away discrimination protections for LGBTQ patients under the Affordable Care Act.”
Harris made the remarks at a fundraiser in Provincetown, Massachusetts on July 20, the day before President Joe Biden dropped out of the presidential race and endorsed Harris.
Harris’s assertion is largely accurate: Under the Trump administration, the US Department of Health and Human Services finalized a rule that repealed several LGBTQ+ discrimination protections enacted by the Obama administration.
When contacted for evidence, a spokesperson for Harris’ campaign pointed to the rule change. A Trump campaign spokesperson called Harris’s claims “false” but did not provide evidence.
The rule outlined how the administration would interpret Section 1557, Obamacare’s nondiscrimination provision, removing the ban on discrimination based on gender identity and eliminating broader protections for transgender people seeking health insurance.
But legal issues complicate the situation: Courts suspended both the Obama and Trump policies shortly after they were finalized, so it’s unclear how the Trump administration’s repeal will affect LGBTQ+ patients who face discrimination.
The Trump administration has repealed several Obama-era LGBTQ+ discrimination protections.
Section 1557 of the Affordable Care Act of 2010 prohibits discrimination on the basis of race, color, national origin, disability, age, or sex in federally funded health care programs and activities. The Obama administration’s Department of Health and Human Services did not finalize regulations on how to apply this portion of the ACA until the end of the president’s second term in May 2016, a few months before the presidential election. The final guidelines included several provisions intended to protect transgender patients from discrimination in health care and insurance coverage.
The Trump administration’s Department of Health and Human Services finalized its own regulations in 2020, removing some of the protections issued by the Obama administration, and KFF, a nonpartisan center for health policy research, analyzed some of the most substantive changes.
The Obama-era regulations’ definition of “sex discrimination” included discrimination based on gender identity and gender stereotypes, but the Trump-era regulations removed the entire definition of sex discrimination. The Trump administration’s changes state that “the final rule returns to and relies on the plain meaning of the term (sex),” which it describes as “the biological duality of male and female that humans share with other mammals.” The Obama-era regulations required that entities covered by the ACA “provide individuals equal access to health programs or activities without discrimination on the basis of sex” and “treat individuals in accordance with their gender identity.” The Trump-era regulations removed both of these provisions. The Obama-era regulations prohibited health insurers from making blanket exclusions in coverage of gender-affirming medical care. They also included a more general prohibition on discrimination in insurance coverage on the basis of sex or gender identity. The Trump-era regulations removed these provisions.
In addition to Section 1557, the Trump administration’s rules removed discrimination protections related to sexual orientation and gender identity from other ACA provisions related to state Medicaid programs and the marketplaces where people can buy insurance through the ACA.
The Biden administration in April reinstated much of the Obama administration’s 2016 legislation, adding additional protections based on sexual orientation.
The legal battle over Section 1557 regulations
Regulations issued by the Trump administration have repealed Obama-era LGBTQ+ discrimination protections in the ACA, but the complex legal landscape makes it unclear whether these non-discrimination provisions can be enforced.
After the Obama administration sought public comment on health care discrimination in 2013 and proposed rules in 2015, the regulations including LGBTQ+ protections went into effect in July 2016. However, a lawsuit brought by a group of religious health care providers and states put key LGBTQ+ protections on hold by December 2016 while the courts considered the issue. A Texas federal judge issued a preliminary injunction in Franciscan v. Burwell, suspending enforcement of provisions of the regulations relating to “gender identity” and “abortion.” The injunction did not affect the gender stereotyping provisions. When the Obama administration included gender stereotyping in the 2016 regulations, it said the provisions could provide protection against sexual orientation discrimination. However, because of the injunction, it is unclear to what extent the Obama-era regulations could protect against LGBTQ+ discrimination.
Once Trump took office, his administration did not challenge the Franciscan Alliance injunction in court.
The Trump administration finalized its own rules rolling back LGBTQ+ protections in 2020, citing the 2019 Franciscan Union ruling as its justification.
But the Trump administration’s rule has also invited legal challenges.
Just days before the administration announced its new regulations, the U.S. Supreme Court issued a landmark decision. Considering a lawsuit in which an employee claimed he or she was fired for being gay or transgender, the Court ruled in Bostock v. Clayton County that firing an employee because of their sexual orientation or gender identity constitutes “sex discrimination” and is prohibited by Title VII of the Civil Rights Act of 1964.
Despite the ruling, the Trump administration released a final rule four days later, eliminating LGBTQ+ protections and narrowing the interpretation of “sex discrimination.” Two transgender patients in New York sued to block the Trump administration’s new rule, resulting in a federal judge issuing a nationwide injunction the day before the rule was set to take effect.
When Biden took office, the Department of Health and Human Services announced that it would adopt a broader, LGBTQ+-inclusive interpretation of sex discrimination in light of the Bostock decision, a position that was incorporated into new regulations but was later challenged in court and put on hold.
Our Verdict
Harris said Trump “stripped away protections from discrimination for LGBTQ patients under Obamacare.” The Trump Administration rolled back many Obama-era health care and insurance coverage protections against LGBTQ+ discrimination under Obamacare. However, legal challenges have prevented both Obama- and Trump-era rules from being implemented, so it is unclear how the Trump Administration’s actions have affected LGBTQ+ patients. This statement is accurate but requires clarification or additional information. Rated “Mostly True.”
