(On June 12, the Federal Government released a set of guidelines that would repeal an Obama-era rule that forbids discrimination against patients who are transgender or have previously endured an abortion. It is one of many rules and regulations set forth by the Federal Government that delineates “sex discrimination” as only applying when someone faces discrimination for being female or male and does not defend people from prejudice based on sexual orientation or gender identity.)

Section 1557 of the Affordable Care Act, known as the Health Care Rights Law is the non-discrimination provision of the Affordable Care Act (ACA). The Federal Law established that it is unlawful to discriminate based on race, colour, national origin, sex, age, or disability in certain health programs and activities. Federal agencies often adopt rules to explain what different laws mean. In 2016, the Department of Health and Human Services (HHS) adopted a rule explaining what the Health Care Rights Law means and how it plans to enforce it.

An Obama-era rule explained that defences regarding “sex” encompass those based on gender identity as a person’s internal sense of being, which it delineated as “male, female, neither, or a combination of male and female.” This rule made it easier for transgender people to enforce their rights under the Health Care Rights Law and get access to the health care they need. Several states and providers subsequently filed lawsuits challenging the agency’s interpretation. Notably, Judge O’Connor in the case of Franciscan Alliance V. Azar sided with the plaintiffs who argued that the administration’s rule violated religious freedom.

It is pertinent to mention that religious liberty does not mean the right to discriminate or harm others. However, the court granted a preliminary injunction to prohibit  Human and Health Services (HHS) from enforcing the parts of the rule, including the parts defending transgender people until after a full adjudication. The Obamacare rule was immediately challenged in court and has not taken effect yet, so it is evident that the new rule serves only to put an end to that particular legal battle and to draw attention to the issue.

The change is the latest step by the Federal Government to restrict the definition of ‘sex’ as male or female and as determined by biology after the Obamacare rule expanded it to strengthen legal defences for transgender individuals in education, housing, and the military. The Federal rule makes changes to gender-based discrimination protections beyond Section 1557 of the Affordable Care Act (ACA). The rule would remove all recognition by Health and Human Services (HHS) that the law forbids anti-transgender bias. It would also claim to eliminate requirements that hospitals and health plans notify patients of their right to receive information in their primary language or to file a grievance if they’ve been mistreated. The rule could also mean that those seeking an abortion could be denied care if performing the procedure violates the provider’s moral or religious beliefs.

The Federal Government’s move not only concerns the Domestic Law but also International Law.

Under international human rights law, all persons have the right to control and decide freely on matters related to their sexuality and to be defended from prejudice based on the exercise of their sexuality. It is pertinent to mention that Article 2 of the International Covenant on Civil and Political Rights defends the gender identity of the sexual minorities in the world. It is to be noted that the United States is a signatory to the treaty and has ratified it. Similarly, Article 2 of the Universal Declaration of Human Rights recognizes the right to sexuality as a human right.

Now that it’s marked “final,” this rule may now encounter hurdles via the other branches of the Federal Government. On June 15, for instance, the U.S. Supreme Court in a 6-3 decision ruled that

Title VII of the Civil Rights Act, which makes it unlawful for employers to discriminate because of a person’s sex, also covers sexual orientation and transgender status. At the most fundamental level, Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC were cases about whether the existing federal ban on sex discrimination forbids employment discrimination against LGBTQ workers.

The three cases involve issues closely related to the legal questions at play in the Federal Government’s Health and Human Services (HHS) rule. Now, it would be much harder for the Federal Government to push forward the ordinary meaning of ‘sex’ which does not include sexual orientation. While the State’s legitimate role in managing the healthcare provisions cannot be understated, compromising human rights is not the solution. The Government must integrate its health care management system with the existing transgender rights to preserve individual dignity and civil rights.

ABOUT THE AUTHOR

Bhavya Johari

Bhavya Johari is an LL.B. (Hons.) candidate from NALSAR University of Law, Hyderabad. He has a keen interest in human rights, constitutional law and criminal law.