Transgender protections targeted by White House

Proposal would roll back rights on health care

WASHINGTON — The Trump administration Friday formally proposed to roll back Obama-era civil rights safeguards for transgender people in the nation’s health care system, stripping protections from discrimination based on gender identity and leaning government policy toward recognizing only the physical characteristics of sex at birth.

The Health and Human Services Department’s proposed regulation would replace a 2016 rule from the Obama administration that defined discrimination “on the basis of sex” to include gender identity, specifying that the term means a person’s “internal sense of gender, which may be male, female, neither or a combination of male and female, and which may be different from an individual’s sex assigned at birth.” The Obama-era definition of discrimination also protected women who had terminated a pregnancy.

Without the Obama-era language, health care workers would be free to object to performing procedures such as gender reassignment surgery, and insurers would not be bound to cover all services for transgender customers. The goal of the new rule fits into a broader agenda pushed by religious activists inside and outside the government. It is also consistent with administration actions to limit civil rights protections for gay and transgender Americans in a variety of domains, including education, employment and housing.

The Obama administration adopted the health care discrimination rule to carry out a civil rights provision of the Affordable Care Act known as Section 1557. That provision prohibits discrimination based on race, color, national origin, sex, age or disability in “any health program or activity” that receives federal financial assistance.

The provision extended to both insurers and health care providers.

But a group of states and religious medical providers sued, and in December 2016, a federal judge in Fort Worth blocked that section of the rule on a temporary basis, writing that “Congress did not understand ‘sex’ to include ‘gender identity.’” The judge, Reed O’Connor, has yet to issue a final ruling, and a nationwide preliminary injunction remains in place. Cases challenging the rule on similar grounds are pending in North Dakota.

President Donald Trump’s Justice Department told O’Connor in court filings this year that it agreed with him.

“What we’re doing today conforms with the court injunction as well as the position of the Department of Justice, but most importantly conforms with the text of the law itself,” Roger Severino, the director of the Office for Civil Rights at the Health and Human Services Department, said Friday in a call with reporters. “That’s all we are doing here, is making sure we’re being fully consistent with the law the people’s representatives passed and being faithful to it.”

But three other courts have found that the provision in the health law does protect transgender patients against discrimination by health care providers.

Transgender rights groups contended that the preliminary injunction in Texas could have been contested once a final ruling was made and possibly overturned. But the new rule was in keeping with a broader agenda, they said.