Last week, the department of Health and Human Services (HHS) released revised rules with regard to Section 1557 of the Affordable Care Act (ACA) of 2010. The revised rules were a direct result of litigation that has been ongoing since 2016. It's likely that you were not aware that the revision was a result of litigation because the media has been painting a narrative rather than reporting, “just the facts.”

Headlines:

“Trump administration revokes transgender health protection,” (Los Angeles Times, 06/12/2020).

“Trump administration revokes Obama-era transgender health protection,” (USA Today, 06/13/2020).

“Trump Administration Revokes Health Care Protections for Transgender People,” (TIME, 06/12/2020).

“Trump administration reverses Obama-era transgender health protections that prohibit discrimination,” (MarketWatch, 06/12/2020).

“Trump administration rolls back Obama-era transgender health care protections,” (CNN, 06/13/2020).

“HHS reverses ObamaCare rule that included abortion, gender identity in sex discrimination protections,” (Fox News, 06/12/2020).

 In truth, there was nothing to revoke, repeal, or reverse. The alleged rule was never implemented. Here are the Key Points:

1. The HHS rule, which sought to include gender identity and termination of pregnancy as sex discrimination, was blocked from enforcement in 2016, prior to the 2017 enforcement date

2. HHS had two years to revise the rule to bring it inline with the Court's decision

3. In 2019, the case was reopened and the HHS rule was vacated

4. Last week, HHS issued a new rule that simply restored sex discrimination language to what has been previously accepted language

 Initially, after the passage of the ACA, HHS decided to define new terms not included in the legislation. One of those terms was, "sex," which HHS determined included, "gender identity." HHS defined, "gender identity," as, "an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth,” (Reuters).

HHS, at the same time, attempted to define discrimination on the basis of termination of pregnancy, as sex discrimination (National Law Review).

This definition of sex, gender identity, and termination of pregnancy were applied to Section 1557 of the ACA, known as the, "Nondiscrimination Provision." The text of Section 1557 is provided here for reference:

SEC. 1557. <<NOTE: 42 USC 18116.>>  NONDISCRIMINATION.

(a) In General.--Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments).

<<NOTE: Applicability.>> 
The enforcement mechanisms provided for and available under such title VI, title IX, section 504, or such Age Discrimination Act shall apply for purposes of violations of this subsection.

(b) Continued Application of Laws.--Nothing in this title (or an amendment made by this title) shall be construed to invalidate or limit the rights, remedies, procedures, or legal standards available to individuals aggrieved under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), or the Age Discrimination Act of 1975 (42 U.S.C. 611 et seq.), or to supersede State laws that provide additional protections against discrimination on any basis described in subsection (a).

(c) Regulations.--The Secretary may promulgate regulations to implement this section.

From the text, we can see that Section 1557 pulls from prior legislation and is designed to apply those protections to the health care industry. From the HHS website, Section 1557 is explained this way:

"Section 1557 is the nondiscrimination provision of the Affordable Care Act (ACA). The law prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities. Section 1557 builds on long-standing and familiar Federal civil rights laws: Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973 and the Age Discrimination Act of 1975," (Health and Human Services - Section 1557).

By redefining, "sex," to also mean, "gender identity," and, "termination of pregnancy," the HHS rule would have required medical insurers and providers to provide coverage and services for gender transition surgeries and abortion procedures.

In 2016, Franciscan Alliance, along with two other Christian-affiliated healthcare groups and eight states, filed a lawsuit against the HHS rule on the basis that, "the Rule's interpretation of sex discrimination pressure[d] doctors to deliver healthcare in a manner that violate[d] their religious freedom and thwart[ed] their independent medical judgment and [would] require burdensome changes to their health insurance plans … [they] argue[d] the new regulation [would] require them to perform and provide insurance coverage for gender transitions and abortions, regardless of their contrary religious beliefs or medical judgment," (CNN).

To date, there have been two judicial findings in Franciscan Alliance case, both siding with Franciscan Alliance. Initially, "on December 31, 2016, the U.S. District Court for the Northern District of Texas issued an opinion in Franciscan Alliance, Inc. et al v. Burwell, enjoining the Section 1557 regulation’s prohibitions against discrimination on the basis of gender identity and termination of pregnancy on a nationwide basis," (Health and Human Services - Section 1557).

“Following [the December 2016] ruling, the Department of Justice (DOJ) asked the court to remand the Obama-era regulation back to HHS so it could be revised to comply with [the Court's] ruling. This request was granted, and the lawsuit was put on hold while the rule was remanded to HHS,” (Health Affairs).

By October of 2019, with no new rule from HHS presented to the Court, the case was reopened and the previous HHS rule, which included gender identity and termination of pregnancy, was vacated by the Court.

At no time had the new definitions been enforced. The U.S. District Court for the Northern District of Texas blocked its implementation, nationwide, prior to the rule going into effect.

The premise for the new rule was explained this way.

"Under the Proposed Rule, HHS plans to revise the provisions enjoined in federal court such as “gender identity” and “termination of pregnancy” and use the plain meaning of the words when they were written into law by Congress.  The Proposed Rule would not create a new definition of discrimination “on the basis of sex.” Instead, HHS would enforce Section 1557 by returning to the government's longstanding interpretation of “sex” under the ordinary meaning of the word Congress used," (National Law Review).

 In this case, the Court held that Faith-based providers cannot be forced by the federal government to provide services and coverages that run contrary to their religious beliefs, pursuant to the Administrative Procedure Act and the Religious Freedom Restoration Act.