On Friday the Trump administration moved to revoke newly won health care discrimination protections for transgender people, the latest in a series of actions that aim to reverse gains by LGBTQ Americans in areas ranging from the military to housing and education.
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 would reverse an Obama-era policy that the Trump administration already is not enforcing.
“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 LGBT people.
House Speaker Nancy Pelosi, D-Calif, said the action shows “utter contempt for the health, safety and humanity of women and transgender Americans.”
The administration also has moved to restrict military service by transgender men and women , proposed allowing certain homeless shelters to take gender identity into account in offering someone a bed for the night and concluded in a 2017 Justice Department memo that federal civil rights law does not protect transgender people from discrimination at work. As one of her first policy moves, Education Secretary Betsy DeVos withdrew guidance that allowed students to use bathrooms matching their gender identity.
More than 1.5 million Americans identify as transgender , according to the Williams Institute, a think tank focusing on LGBT policy at the UCLA School of Law. A bigger number – 4.5% of the population- identify as lesbian, gay, bisexual or transgender (LGBT), according to Gallup.
Pushing back against critics, the HHS official overseeing 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 Severino, who heads the HHS 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.”
In some places LGBT people are protected by state laws, said Lambda Legal attorney Gonzalez-Pagan, “but what do you say to people living in a state that doesn’t have state-explicit protections? Do they move their home?”
Behind the dispute over legal rights is a medically recognized condition called “gender dysphoria” – discomfort or distress caused by a discrepancy between the gender that a person identifies as and the gender at birth. Consequences can include severe depression. Treatment can range from sex-reassignment surgery and hormones to people changing their outward appearance by adopting a different hairstyle or clothing.
Many social conservatives disagree with the concept.
“Sex is not subjective, it is an objective biological reality,” Tony Perkins, president of the Family Research Council, said in a statement supporting the Trump administration’s move. The proposed rule will ensure that federal law “isn’t used as a vehicle to advance transgender or abortion politics,” he said.
Under the Obama-era federal 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 Affordable Care Act, which bars sex discrimination in health care but does not use the term “gender identity.”
The proposed new 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.
The American Civil Liberties Union served notice it expects to challenge the rule in court when it is final. Louise Melling, ACLU deputy legal director said the potential impact could go beyond LGBT people and also subject women to discrimination for having had an abortion.
That’s because the proposal would remove “termination of pregnancy” as grounds for making a legal claim of sex discrimination in health care, one of the protections created in the Obama years. Abortion opponents had argued that the Obama regulation could be construed to make a legal argument for federal funding of abortions.
UCLA legal scholar Jocelyn Samuels, who oversaw the drafting of the HHS transgender anti-discrimination rule under Obama, said that rule reflected established legal precedent that transgender people are protected by federal anti-discrimination laws.
“This administration has manifested its intent to roll back that well-considered understanding in every context,” she said.
Samuels questioned the timing of the Trump action, since the U.S. Supreme Court has agreed to hear three cases this year looking at whether federal civil rights law bans job discrimination on the basis of sexual orientation and gender identity.
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.
HHS official Severino said the Trump administration is going back to the literal text of the ACA’s anti-discrimination law to correct an overly broad interpretation.
The Obama rule dates to a time when LGBT people were gaining political and social recognition. But a federal judge in Texas has said the rule went too far by concluding that discrimination on the basis of gender identity is a form of sex discrimination.
Severino said 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.