Trans­gen­der peo­ple may lose health care

Tampa Bay Times - - Front Page - BY RI­CARDO ALONSO-ZAL­DIVAR

WASH­ING­TON — The Trump ad­min­is­tra­tion pro­posed re­vok­ing Obama-era dis­crim­i­na­tion pro­tec­tions for trans­gen­der peo­ple in health care on Fri­day, a move LGBTQ groups fear will re­sult in some Amer­i­cans be­ing de­nied needed med­i­cal treat­ment.

The Health and Hu­man Ser­vices Depart­ment re­leased a pro­posed reg­u­la­tion that in ef­fect says “gen­der iden­tity” is not pro­tected un­der fed­eral laws that pro­hibit sex dis­crim­i­na­tion in health care.

It fits into a back­drop of ad­min­is­tra­tion ac­tions to limit or move back some of the new recog­ni­tion for LGBTQ peo­ple in ar­eas rang­ing from mil­i­tary ser­vice to hous­ing.

“The ac­tions to­day are part and par­cel of this ad­min­is­tra­tion’s ef­forts to erase LGBTQ peo­ple from fed­eral reg­u­la­tions and to un­der­mine nondis­crim­i­na­tion pro­tec­tions across the board,” said Omar Gon­za­lez-Pa­gan, a se­nior at­tor­ney on health care at Lambda Le­gal, a civil rights or­ga­ni­za­tion rep­re­sent­ing LGBTQ peo­ple.

But the health of­fi­cial over­see­ing the writ­ing of the new reg­u­la­tion said trans­gen­der pa­tients would con­tinue to be pro­tected by other fed­eral laws that bar dis­crim­i­na­tion on the ba­sis of race, color, na­tional ori­gin, sex, age and dis­abil­ity.

“Every­one de­serves to be treated with dig­nity and re­spect,” said Roger Sever

A pro­posed reg­u­la­tion says gen­der iden­tity doesn’t war­rant health care in­ter­ven­tion.

ino, who heads the Health and Hu­man Ser­vices Of­fice for Civil Rights. “We in­tend to fully en­force fed­eral laws that pro­hibit dis­crim­i­na­tion.”

Asked about the charge that the ad­min­is­tra­tion has opened the door to dis­crim­i­na­tion against trans­gen­der peo­ple seek­ing needed med­i­cal care of any type, Sev­erino re­sponded, “I don’t want to see that hap­pen.”

The Trump ad­min­is­tra­tion’s pro­posed rule re­verses the Obama ad­min­is­tra­tion, which con­cluded that the Af­ford­able Care Act’s anti-dis­crim­i­na­tion sec­tion does in­deed pro­tect trans­gen­der peo­ple seek­ing health care ser­vices.

Fri­day’s ac­tion had been ex­pected by ac­tivists on both sides of the na­tion’s so­cial is­sues di­vide. Trump’s re­li­gious con­ser­va­tive base has ar­gued that the Obama ad­min­is­tra­tion stretched the mean­ing of “sex dis­crim­i­na­tion” when it in­cluded gen­der iden­tity as a pro­tected class. Civil rights and LGBTQ groups say that view is log­i­cally and legally flawed.

The pro­posed rule change is un­likely to have im­me­di­ate con­se­quences be­yond the realm of po­lit­i­cal and le­gal de­bate. It faces a 60-day com­ment pe­riod and an­other layer of re­view be­fore it can be fi­nal­ized. Court chal­lenges are ex­pected.

“De­spite the goals of this White House … courts have been clear for decades that pro­hi­bi­tions on sex dis­crim­i­na­tion en­com­pass dis­crim­i­na­tion against trans­gen­der in­di­vid­u­als,” said Louise Melling, deputy le­gal di­rec­tor with the Amer­i­can Civil Lib­er­ties Union. Her or­ga­ni­za­tion, she added, will chal­lenge the pro­posal in court.

In a twist, the rule would also af­fect the no­tices that mil­lions of pa­tients get in mul­ti­ple lan­guages about their rights to trans­la­tion ser­vices. Such no­tices of­ten come with in­surer “ex­pla­na­tion of ben­e­fits” forms. The Trump ad­min­is­tra­tion says the no­tice re­quire­ment has be­come a need­less bur­den on health care providers, re­quir­ing bil­lions of pa­per no­tices to be mailed an­nu­ally at an es­ti­mated five-year cost of $3.2 bil­lion.

Health of­fi­cial Sev­erino said that the Trump ad­min­is­tra­tion is go­ing back to the lit­eral text of the Af­ford­able Care Act’s an­tidis­crim­i­na­tion law to cor­rect what it sees as an overly broad in­ter­pre­ta­tion.

The Obama rule dates to a time when LGBTQ peo­ple gained po­lit­i­cal and so­cial recog­ni­tion. But a fed­eral judge in Texas said the rule went too far by con­clud­ing that dis­crim­i­na­tion on the ba­sis of gen­der iden­tity is a form of sex dis­crim­i­na­tion, which is for­bid­den by civil rights laws.

Un­der the orig­i­nal rule, a hos­pi­tal could be re­quired to per­form gen­der-tran­si­tion pro­ce­dures such as hys­terec­tomies if the fa­cil­ity provided that kind of treat­ment for other med­i­cal con­di­tions. The rule was meant to carry out the anti-dis­crim­i­na­tion sec­tion of the law, which bars sex dis­crim­i­na­tion in health care but does not use the term “gen­der iden­tity.”

In the Texas case, a Catholic hos­pi­tal sys­tem, sev­eral states and a Chris­tian med­i­cal as­so­ci­a­tion ar­gued that the rule went be­yond the law as writ­ten and would co­erce providers to act against their med­i­cal judg­ment and re­li­gious be­liefs.

Sev­erino also said that the pro­posed rule does not come with a new def­i­ni­tion of a per­son’s sex. Ear­lier, a leaked in­ter­nal doc­u­ment sug­gested the ad­min­is­tra­tion was de­bat­ing whether to is­sue an im­mutable def­i­ni­tion of sex, as based on a per­son’s gen­i­tal or­gans at birth.

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