Section 1557 of the Affordable Care Act prohibits discrimination in health care based on certain characteristics, including an individual’s sex.  In 2016, the Obama Administration finalized a rule interpreting that provision to prohibit most instances of discrimination in health care and insurance against individuals on the basis of their sexual orientation or gender identity.  The Trump Administration, however, has reversed course, issuing a new rule that would eliminate protections for LGBTQ people.  Further, the rule incorporates a broad religious exemption from Title IX of the Education Amendments of 1972 into the health care context, allowing health care providers to choose not to provide care if they maintain that doing so would violate their religious beliefs.  Plaintiffs, the State of New York and other States, challenged the new rule in the U.S. District Court for the Southern District of New York.

CAC and the House General Counsel’s Office filed an amicus curiae brief on behalf of the U.S. House of Representatives in support of Plaintiffs.  The brief argues that the Trump Administration’s rule violates the text of the Affordable Care Act and undermines Congress’s plan in passing it.  First, the brief explains that the Affordable Care Act was a response to critical failures in the American healthcare system that consistently left vulnerable Americans without access to quality, affordable insurance and care.  The Act’s many benefits and protections have been remarkably successful in expanding access to health care and eliminating such discrimination.

Second, the brief explains that the Trump Administration’s decision to remove certain nondiscrimination protections for LGBTQ individuals violates the text of the Affordable Care Act and undermines Congress’s plan in passing it.  Specifically, Section 1557 of the Act prohibits discrimination in health care on the basis of sex, and the Supreme Court’s recent decision in Bostock v. Clayton County makes clear that a prohibition on discrimination on the basis of sex encompasses discrimination on the basis of sexual orientation and gender identity.

Moreover, the Administration’s elimination of protections for LGBTQ individuals undermines Congress’s plan in passing the Act.  Protecting LGBTQ people from health care discrimination is a critical part of expanding affordable, quality health care in the United States, and the Trump Administration’s attempt to undo those protections flies in the face of Congress’s plan to eliminate discrimination in health care.

Third, the brief explains that the Administration’s creation of a broad religious exemption in the health care context also violates the text of the Act and Congress’s plan in passing it.  The exemption—which the Administration imported from Title IX, the federal law prohibiting sex discrimination in education—would allow health care providers to discriminate against patients and refuse to provide care if they maintain that doing so is required by their religious beliefs.  However, as the House’s brief explains, Title IX’s religious exemption applies by its plain terms only to “educational institutions,” and Congress nowhere suggested that it wished to import that exemption into the health care context.

Indeed, Congress had good reasons for not doing so: while individuals can choose not to attend religious schools, they often have little choice about where they receive health care, especially in rural locations and in emergency situations.  And an increasing number of hospitals in the United States are religiously affiliated.  In short, if Congress had intended to create such a massive loophole in Section 1557’s protections, it would have done so explicitly.  It did not.