HHS Blocked from Enforcing Gender Identity Antidiscrimination Rule

Section 1557 of the Affordable Care Act bans Medicare participants from committing discrimination on the basis of, among other things, gender identity. A group of religious hospital systems and medical groups challenged the law claiming that it forced medical professionals to provide gender transition and abortion services in violation of their medical judgment and religious beliefs. A federal district court in Texas agreed and issued a preliminary injunction to block HHS from enforcing the rule in a case called Franciscan Alliance v. Burwell.

As the name implies, a preliminary injunction is a temporary measure rather than a final disposition of the case. A trial still needs to take place to determine if the gender identity protections of Section 1557 really are a violation of doctors’ constitutional rights. In fact, some legal experts believe that the court was wrong to conclude that Section 1557 forces providers to furnish gender transition services and abortions and that the ruling will be overturned. But even if that does happen, it will probably take a long time. In the meantime, unless the preliminary injunction is lifted, HHS will be unable to enforce the gender identity nondiscrimination parts of the rule unless and until the court decides that it is enforceable.

For more on Section 1557, and appointment of a coordinator to oversee compliance, see “Complying with ACA’s Nondiscrimination Requirements,” GCA, Nov. 7, 2016.)