HRC: Trump’s plans ‘un­con­scionable’

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The White House has de­clined to com­ment on re­cent in­di­ca­tions the Trump ad­min­is­tra­tion is set to undo an Obama-era rule bar­ring med­i­cal providers from re­fus­ing ser­vice to trans­gen­der peo­ple, in­clud­ing gen­der re­as­sign­ment surgery.

The Washington Blade sought to ask White House Press Sec­re­tary Sarah Huck­abee San­ders about the pro­posed re­ver­sal April 23 dur­ing the daily brief­ing, but the spokesper­son didn’t call on the Blade for a ques­tion, nor did any other reporter ask about the is­sue fol­low­ing a re­port on the de­vel­op­ment in the New York Times.

In re­sponse to an email re­quest for more in­for­ma­tion, the White House re­ferred the Washington Blade to HHS, which didn’t re­spond to a re­quest for com­ment. OMB also didn’t re­spond to the Blade’s re­quest for in­for­ma­tion.

The Obama-era rule in­ter­preted Sec­tion 1557 of the Af­ford­able Care Act, which bars dis­crim­i­na­tion in health­care on the ba­sis of sex, to bar re­fusal of ser­vice to trans­gen­der peo­ple based on their gen­der iden­tity, in­clud­ing the de­nial of tran­si­tion-re­lated care such as gen­der re­as­sign­ment surgery.

Pat­tern of anti-trans poli­cies con­tin­ues

As the Times first re­ported, the U.S. Jus­tice De­part­ment noted in a fil­ing last week in a law­suit chal­leng­ing the rule the De­part­ment of Health and Hu­man Ser­vices “had sub­mit­ted a draft of a pro­posed rule” for re­view to the White House Of­fice of Man­age­ment and Bud­get. The OMB web­site re­veals it’s con­sid­er­ing a pro­posed rule re­lated to “non-dis­crim­i­na­tion in health pro­grams and ac­tiv­i­ties.”

Although the Jus­tice De­part­ment fil­ing doesn’t ex­plic­itly say the pend­ing pro­posal would undo the Obama-era rule, that seems likely based on the de­ci­sion to file it in a law­suit chal­leng­ing the pro­vi­sion and the histo- ry of the Trump ad­min­is­tra­tion.

The Trump ad­min­is­tra­tion has al­ready de­clared federal law bar­ring dis­crim­i­na­tion on the ba­sis of sex doesn’t ap­ply to cases of trans­gen­der dis­crim­i­na­tion in ed­u­ca­tion and em­ploy­ment. The Ed­u­ca­tion and Jus­tice De­part­ments rolled back Obama-era guid­ance re­quir­ing schools to al­low trans­gen­der kids to use the re­strooms con­sis­tent with their gen­der iden­tity. Ad­di­tion­ally, the Jus­tice De­part­ment re­versed a memo from former U.S. At­tor­ney Gen­eral Eric Holder find­ing Ti­tle VII of Civil Rights of 1964 pro­hibits anti-trans dis­crim­i­na­tion in the work­force.

The Jus­tice De­part­ment fil­ing in­di­cates the pro­posed rule change will be pub­lished in the Federal Reg­is­ter and made avail­able for pub­lic com­ment — but says noth­ing about tim­ing for when that will hap­pen.

The Obama-era rule is cur­rently moot in any event. Last year, U.S. District Judge Reed O’Con­nor is­sued an in­junc­tion bar­ring the U.S. gov­ern­ment from en­forc­ing the rule as a re­sult of lit­i­ga­tion filed by Texas At­tor­ney Gen­eral Ken Pax­ton.

Roger Sev­erino, an anti-trans scholar at the Her­itage Foun­da­tion-turned-di­rec­tor of the Of­fice for Civil Rights at HHS, cited the court rul­ing in an in­ter­view with the New York Times as ev­i­dence that it’s time to re-ex­am­ine the rule.

“The court held that the reg­u­la­tion’s cov­er­age of gen­der iden­tity and ter­mi­na­tion of preg­nancy was con­trary to law and ex­ceeded statu­tory au­thor­ity, and that the rule’s harm was felt by health­care providers in states across the coun­try, so a na­tion­wide in­junc­tion was ap­pro­pri­ate,” Sev­erino is quoted as say­ing. “The court or­der


is bind­ing on HHS, and we are abid­ing by it.”

De­spite this court or­der — and even if the Trump ad­min­is­tra­tion were to re­verse the un­der­ly­ing rule — trans­gen­der peo­ple could still sue med­i­cal providers in court based on the un­der­ly­ing law in the Af­ford­able Care Act that pro­hibits dis­crim­i­na­tion in health­care on the ba­sis of sex. A grow­ing num­ber of courts are in­ter­pret­ing laws against sex dis­crim­i­na­tion to ap­ply to LGBT peo­ple re­gard­less of the views of the Trump ad­min­is­tra­tion.

David Stacy, gov­ern­ment af­fairs di­rec­tor for the Hu­man Rights Cam­paign, crit­i­cized the Trump ad­min­is­tra­tion in a state­ment.

“No health­care provider should be able to turn some­one away be­cause of their gen­der iden­tity,” Stacy said. “[Trump’s] plans to elim­i­nate the reg­u­la­tions spell­ing out th­ese cru­cial non-dis­crim­i­na­tion pro­tec­tions is un­con­scionable.”

April 27, 2018

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