DHHS Working to Repeal ACA’s Non-discrimination Policy Toward Transgender People

The Trump administration is now working to repeal an ACA rule prohibiting discrimination against transgender people by medical care providers, hospitals and health insurance companies. The 2016 rule bans discrimination based on “race, color, national origin, sex, age or disability in any health program or activity” that receives federal financial assistance (i.e. anyone accepting Medicare, Medicaid, or participating in health insurance marketplaces).

Last January, the current administration saw an opportunity to attack this prohibition when Reed O’Connor, a federal judge in Texas ruled that “Congress did not understand ‘sex’ to include ‘gender identity.” The Advocate reports O’Connor as adding that “In the Affordable Care Act, Congress adopted the binary definition of sex.”  Attorney General Jeff Sessions, noted the New York Times, agreed observing that the main federal job discrimination law “does not encompass discrimination based on gender identity per se.”

Jennifer C. Pizer of Lambda Legal characterized their arguments for changing the rule as resting on an “excruciatingly narrow and legally incorrect definition of the term ‘sex’ that would jeopardize legal protections for lesbian, gay, bisexual and transgender people.”

Unlike Judge O’Connor, many federal judges agree that gender identity is a protected category. Barry Ted Moskowitz, a chief judge in San Diego, ruled definitively that “discrimination on the basis of transgender identity is discrimination on the basis of sex.” This position is also affirmed by the AMA which “opposes any modifications to the rule that would jeopardize the health and well-being of vulnerable populations.”

New CARE Act Responding to Opioid Crisis Is Based on the Ryan White CARE Act

On April 13, Senator Elizabeth Warren (D-MA) and Representative Elijah Cummings (D-ND) announced their introduction of the Comprehensive Addiction Resources Emergency (CARE) Act of 2018. AIDS United describes the bill as, “significant, long-term funding for local strategies that reduce fatal overdoses, increase substance use treatment, and address the infectious disease consequences of the opioid crisis.” If passed, the CARE Act will allocate $100 billion over the next ten years to address this health emergency.

The bill is modeled on the Ryan White CARE Act, recognizing the similarities between this crisis and HIV/AIDS. At its peak in 1995, AIDS killed 43,000 Americans. More than 45,000 Americans died from opioid overdose between September 2016 and 2017. By 1995, federal investment in AIDS had risen to $3.3 billion a year (about $5.4 billion today after adjusting for inflation) – less than but nevertheless evocative of the annual $10 billion proposed by Warren and Cummings.

Strategic lessons can also be passed on. With Syringe Exchange Programs (SEPs), the percent of HIV transmissions ascribed to injection drug use fell from 40% in 1990 to 6% in 2015. But at present, only 8% of the 220 opioid epicenters most at risk of HIV or HCV outbreaks have SEPs.

Another lesson was that, as the New York Times Editorial Board put it, “Congress eventually treated AIDS as a complex, multidimensional problem and tackled it by funding prevention, treatment, support services and research.” Warren and Cummings modeled their bill after the Ryan White CARE Act recognizes that, to be effective in the face of local stigmatization, solutions have to be locally adapted and supported over the long term to be effective.

View the latest HIV Policy Update here.