Solomon Center Student Fellows Advocate Against Proposed HHS Rule

A group of student fellows from Yale Law School’s Solomon Center for Heath Law and Policy partnered with Yale School of Medicine (YSM) Dean’s Advisory Council on LGBTQI+ Affairs to submit comments to the U.S. Department of Health & Human Services on August 13, 2019, advocating against a proposed rule that they say would have harmful effects on both patients and providers.

If adopted as proposed, Rule RIN 0945-AA11 would overturn rules adopted under the Obama Administration to protect transgender patients and patients who have had abortions from discrimination. The Obama rule marked the first time that anti-discrimination protections in health care explicitly included discrimination based on gender identity.

The provisions of the Affordable Care Act the rules effectuate, Section 1557, bar discrimination on the basis of race, color, national origin, age, disability or sex. The Obama administration rule, as well as a number of federal cases interpreting other anti-discrimination provisions of federal law, have interpreted such protections to include discrimination on the basis of gender identity or stereotypes. However, the Trump Administration’s proposed rule claims the Obama rule misinterpreted the definition of sex and that such an interpretation conflicts with religious freedom protections for providers who do not want to provide care in conflict with their beliefs.

The proposed rule would allow insurance and health care providers to deny care or coverage on the basis of gender identity or termination of pregnancy without consequences under federal law.

“Stripping away these protections would disproportionately harm LGBTQI+ individuals who rely on federal programs to receive health care, and would contribute to the particularly widespread discrimination and lack of access experienced by the trans community,” said Blake Shultz ’21, one of the Solomon Center student fellows who contributed to the comment.

The comments submitted cite evidence that shows how discrimination in health care creates barriers to care and has been associated with increased prevalence of psychiatric disorders for LGBTQI+ patients and discusses how the LGBTQI+ patient population is already disparately vulnerable to health-harming conditions like homelessness. They also argue that the Obama Administration’s interpretation to include protection on the basis of gender identity is legally sound and consistent with existing federal law. In addition, the comments include personal stories of the health care providers on the Dean’s Advisory Council regarding discrimination in the health care setting, and how the proposed regulations could harm patients in Connecticut.

The comments were drafted by Solomon Center Students Hannah Hussey ’20, Blake Shultz ’21, Caroline Lawrence ’21, and Jishian Ravinthiran ’21 under the supervision of Solomon Center Research Fellow Ryan Thoreson ’14 and Executive Director Katie Kraschel in collaboration with the physicians, graduate students, and members of the Yale community who make up the YSM Dean’s Advisory council.

One component of the council’s mission is to foster an inclusive patient-centered environment that effectively and compassionately addresses the needs of LGBTQI+ patients, and partnering with the Solomon Center on advocacy work like such as submitting comments on proposed rules that affect LGBTQI+ patients is one way in which they are fulfilling that mission.

“This collaboration with the Solomon Center has created another avenue in which the council can advocate for LGBTQI+ patients,” said Dr. Andrea Barbieri, Assistant Professor of Pathology and Co-Chair of the Advisory Council. “It’s important work that helps us organize our voices at a critical moment.”