Trump advances health protection rollback for transgender people

WASHINGTON — The Trump administration Friday moved forward with a rule that rolls back health care protections for transgender people, even as the Supreme Court barred sex discrimination against LGBT individuals on the job.

The rule from the Department of Health and Human Services was published in the Federal Register,

the official record of the executive branch, with an effective date of Aug. 18. That will set off a barrage of lawsuits from gay rights and women’s groups. It also signals to religious and social conservatives in President Donald Trump’s political base that the administration remains committed to their causes as the president pursues his reelection.

The Trump administration rule would overturn Obama-era sex discrimination protections for transgender people in health care.

Strikingly similar to the underlying issues in the job discrimination case before the Supreme Court, the Trump health care rule rests on the idea that sex is determined by biology. The Obama version relied on a broader understanding shaped by a person’s inner sense of being male, female, neither, or a combination.

In the HHS rule, the department’s Office for Civil Rights anticipated a Supreme Court ruling on job discrimination “will likely have ramifications” for its health discrimination rule.

But health care is different, HHS argued. “The binary biological character of sex (which is ultimately grounded in genetics) takes on special importance in the health context,” administration lawyers wrote. “Those implications might not be fully addressed by future ( job discrimination) rulings even if courts were to deem the categories of sexual orientation or gender identity to be encompassed by the prohibition on sex discrimination in (civil rights law).”

But gay rights and women’s groups say their arguments against the health care rule have clearly been strengthened by the Supreme Court.

“The decision puts the (HHS) rule on even shakier ground than it ever was,” said Omar Gonzalez-Pagan, a lawyer specializing in health care with the LGBTQ civil rights group Lambda Legal.

Michelle Banker, an attorney for the National Women’s Law Center, said the administration’s timing raises process questions that could later become important in a court challenge. It was only last week HHS announced it had finalized the rule.

“Agencies are required to make reasoned, rational decisions when they make policy,” said Banker. “The Supreme Court just weighed in and said that the legal interpretation they are relying on is wrong, and they have not grappled with that.”