Transgender rights
Proposal would let health care workers, insurers object to gender reassignment, deny services to women who’ve had abortion
The Trump administration is trying to roll back protections enacted under President Barack Obama.
TWASHINGTON he Trump administration formally proposed Friday to roll back Obamaera 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 Department of Health and Human Services’ 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 like 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 in 2016 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, meaning that health care services for transgender patients and patients with a history of abortion must be offered by hospitals and covered by patients’ health plans.
But a group of states and religious medical providers sued, and in December 2016, a federal judge in Fort Worth, Texas, 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.
The 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 Department of Health and Human Services, 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.
“The Trump-Pence administration’s latest attack threatens to undermine crucial nondiscrimination protections for LGBTQ people provided for under the Affordable Care Act,” David Stacy, the government affairs director for the Human Rights Campaign, said in a statement. “The administration puts LGBTQ people at greater risk of being denied necessary and appropriate health care solely based on their sexual orientation or gender identity.”
Asked how the proposed rule would assure continued access to health care for transgender people, Severino said it did not mean providers would be “in any way restricted in how they provide their health care.”
But advocates for transgender people warned that the rule would allow and even encourage providers who are biased against transgender people to deny them treatment. Taken with the recent rule protecting religious health care workers, they said, the administration’s policies shift the civil rights landscape away from patients who may be subject to discrimination and toward clinicians who have objections to treating them, or insurers who do not want to pay for their care.
“What this does from a very practical point of view is that it empowers bad actors to be bad actors,” said Mara Keisling, the executive director of the National Center for Transgender Equality.
She added that already, transgender people “are turned away from ERs, dismissed by insurers and mocked by untrained hospital staff, all while trying to seek the care every American deserves.”