Mostly True: Trump reversed the ACA's LGBTQ+ health care protections. But lawsuits muddied impact

With weeks to go until Americans start casting 2024 presidential election ballots, Democratic Vice President Kamala Harris wants voters to be clear about where she and former President Donald Trump diverge on LGBTQ+ rights.

"If Donald Trump wins in November, he will once again implement policies that target the LGBTQ community," Harris said in a video she shared Aug. 11 on X. "Just look at what he did his first term in office. He took away protections against discrimination for LGBTQ patients under the Affordable Care Act." 

Harris made the comments during a July 20 fundraiser in Provincetown, Massachusetts, a day before President Joe Biden withdrew from the presidential race and endorsed her for president. 

Harris’ claim is largely accurate. Under the Trump administration, the Department of Health and Human Services finalized a rule that removed several LGBTQ+ discrimination protections that the Obama administration had instituted. 

When we contacted the Harris campaign for evidence, a spokesperson pointed us to this rule change. A Trump campaign spokesperson said Harris’ claim was a "lie" but provided no evidence. 

The rule, which outlined how the administration would interpret Section 1557, the Affordable Care Act’s anti-discrimination clause, removed measures prohibiting gender identity discrimination and eliminated broader protections for transgender people seeking health care coverage.

But legal challenges complicate the story. Courts paused enforcement of both the Obama and Trump rules soon after they were finalized, so how Trump’s rollback affected LGBTQ+ patients who faced discrimination is uncertain. 

Section 1557 of the 2010 Affordable Care Act prohibits discrimination based on race, color, national origin, disability, age and sex in federally funded health programs and activities.

Obama’s Department of Health and Human Services didn’t finalize its regulations for how to apply this portion of the ACA until May 2016, at the end of Obama’s second term and months before the presidential election. The final guidance included several provisions that aimed to protect transgender patients from discrimination in health care and insurance coverage. 

Trump’s Department of Health and Human Services in 2020 finalized its own regulations,  removing several of the Obama administration-issued protections. KFF, a nonpartisan health policy research center broke down some of the most most substantive changes:

• Whereas the Obama-era regulations’ definition of "sex discrimination" included discrimination based on gender identity and sex stereotyping, Trump-era regulations removed the entire sex discrimination definition. The Trump change noted that "the final rule reverts to, and relies upon, the plain meaning of the term (sex)]" which it described as the "biological binary of male and female that human beings share with other mammals."

• Obama-era regulations required that ACA-covered entities "provide individuals equal access to its health programs or activities without discrimination on the basis of sex" and "treat individuals consistent with their gender identity." Trump-era regulations removed both these provisions. 

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• Obama-era regulations prohibited health insurers from categorially excluding coverage of gender-affirming care. They also included more general prohibitions on discrimination in insurance coverage based on sex or gender identity. Trump-era regulations removed these provisions. 

Beyond Section 1557, the Trump-era rule removed sexual orientation and gender identity discrimination protections from other Affordable Care Act provisions related to state Medicaid programs and the marketplaces on which people can buy insurance through the ACA.  

The Biden administration in April 2024 reinstated much of what the Obama administration instituted in 2016 and added protections for sexual orientation. 

Although regulations the Trump administration issued undid Obama-era LGBTQ+ discrimination protections in the ACA, a tangled legal landscape means the ability to enforce these anti-discrimination provisions isn’t clear. 

After seeking public comment about health care discrimination in 2013, and proposing a rule in 2015, Obama-era regulations, including LGBTQ+ protections, took effect in July 2016. But a lawsuit brought by a group of religiously affiliated health care providers and states meant that, by December 2016, key LGBTQ+ protections were put on hold as the court weighed the matter.

A Texas federal judge issued a preliminary injunction in Franciscan Alliance v. Burwell, pausing the enforcement of the regulations’ sections on "gender identity" and "termination of pregnancy."

The injunction didn’t affect the provision on sex stereotyping. When the Obama administration included sex stereotyping in the 2016 rule, it said the provision could offer protections against sexual orientation discrimination. But, because of the injunction, it’s unclear how well the Obama-era rule could protect against LGBTQ+ discrimination. 

Once Trump took office, his administration did not challenge the Franciscan Alliance injunction in court. 

The Trump administration finalized its own rule rolling back LGBTQ+ protections in 2020, citing the 2019 Franciscan Alliance case ruling as affirmation for the move.

But the Trump administration’s rule also drew legal challenges. 

Days before the Trump administration announced its new regulations, the U.S. Supreme Court issued a landmark ruling. Weighing cases in which employees said they were fired for being gay or transgender, the Supreme Court ruled in Bostock v. Clayton County that firing people for their sexual orientation or gender identity amounts to "sex discrimination," which is prohibited under Title VII of the 1964 Civil Rights Act.

Despite the ruling, the Trump administration issued its final regulations four days later removing LGBTQ+ protections and adopting a narrower understanding of "sex discrimination." Two transgender patients in New York sued to stop the new Trump-era rule. As a result, a federal judge issued a nationwide injunction a day before the rule was to take effect.

Once Biden took office, the Department of Health and Human Services said it would use a broader, LGBTQ+ inclusive interpretation of sex discrimination, given the Bostock ruling. This position was codified in a new rule, which was challenged in court and paused. 

Harris said that Trump, "took away protections against discrimination for LGBTQ patients under the Affordable Care Act."

The Trump administration rolled back numerous Obama-era protections against LGBTQ+ discrimination in health care and insurance coverage under the Affordable Care Act.

But because legal challenges hampered enforcement of both the Obama- and Trump-era rules,  it’s hard to say how the Trump administration’s action affected LGBTQ+ patients.

The statement is accurate but needs clarification or additional information. We rate it Mostly True.