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Publication Date

2017

Abstract

Section 1557 of the Patient Protection and Affordable
Care Act offers sweeping discriminationprotections for
patients, applicable to both health insurers and health
care providers who receive federal funding or are
subject to federal administration. Placing itself in the
canon of federal antidiscriminationlaws, Section 1557
incorporates Title IX of the Education Amendments of
1972 to prohibit discrimination on the basis of sex.
Just how sweeping this aspect of Section 1557s
prohibitions is has been the subject of controversy
exemplified in litigation in the federal courts, as well as
in the starkly contrasting views of two presidential
administrations. The Department of Health and
Human Services (HHS) under President Obama
employed its regulatory authority to construe Section
1557's prohibition of sex discrimination to encompass
discrimination based on gender identity. While much
litigation was pending in response to this executive
action, however, the administrations changed. HHS
under President Trump has since pulled back the
Obama-era construction, leaving the true scope of
Section 1557 in limbo.
While this revocation was reasonably based on
separationof powers grounds, the policy underlying the
construction was well-founded. It is well established
that the transgender community is both subject to

unique socioeconomic difficulties and the target of
intentional health care discrimination. Just as
Congress has in the past identified classes of
individuals in need of protection in every state, it is
time for Congress to identify gender identity as one
such class. This is especially so in the health care
context because of the unique potential for abuse.
While protections implemented by an executive agency
are subject to the dissenting views of successive
administrations, as recent history has shown,
congressional action would be more insulated from
subsequent attack and more consistent with the
Constitution'sseparationof powers.
The question arises, however, as to potential conflicts
between certain health care providers' religious
freedoms and individuals for whom sex reassignment
surgery has been deemed a medically necessary
treatment for gender dysphoria. The Obama-era
regulations implementing Section 1557 refused to
incorporate a religious objection carve-out, identifying
the Religious Freedom Restoration Act (RFRA) as an
adequate protector of religious freedom, with case-
specific balancing to be done in the courts. While it
would be prudent for Congress to adopt the kind of
protection HHS sought for transgender individuals, it
simply does not make sense for any such legislation not
to incorporate a narrow religious objection carve-out
specifically with regard to sex reassignment surgery.
Any foreseeable case in federal court is likely to come
out the same way: RFRA will prevent the government
from forcing health care providers with sincerely held
religious objections to perform sex reassignment
surgeries. Thus, unnecessary litigation efforts can be
easily forestalled legislatively. Under this approach,
Section 1557 would generally prohibit all health care
discrimination against transgender individuals by
entities receiving federal funding. However, where an
individual is seeking sex reassignment surgery in
particular at a faith-based institution or from a
physician with sincerely held religious objections, the
government would, rather than force the provider to
violate their convictions, provide the minimal funding
necessary to connect the patient with a provider that
does not, or cannot, profess such an objection

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