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Trump admin makes final rule allowing anti-trans discrimination in health care

by Chris Johnson, Washington Blade

Harper Jean Tobin, center, speaks at a rally for transgender health in front of the White House on May 29, 2019. (Washington Blade photo by Michael Key)
Harper Jean Tobin, center, speaks at a rally for transgender health in front of the White House on May 29, 2019. (Washington Blade photo by Michael Key)  

Disregarding pleas from transgender advocates, the Trump administration made final on Friday a rule enabling health care providers to refuse care to transgender people, including gender reassignment surgery.

The rule change at the Department of Health & Human Services reverses an Obama-era regulation interpreting the ban on sex discrimination under Section 1557 of the Affordable Care Act to apply to cases of transgender discrimination.

The change had been in the works for some time, but HHS announced it was final at 4 p.m. (Eastern) on a Friday just before the weekend in the middle of Pride Month. (The change also came on the fourth anniversary of the Pulse nightclub massacre in which 49 people were killed and 53 injured.)

In addition to undoing protections for transgender people, the rule change also rolls back protections based on sex stereotyping, women who have had abortions and those who speak English as a second language.

In a statement Friday, House Speaker Nancy Pelosi (D-San Francisco) called the rule "a shocking attack on the health and well-being of countless vulnerable communities, including women, LGBTQ individuals and people of color, at a time when access to quality health care is more important than ever."

"It is particularly disgraceful that the Trump administration issued this new rule during LGBTQ Pride Month and on the day marking four years since the tragic Pulse Nightclub shooting," she added.

Sung Yeon Choimorrow, executive director of the National Asian Pacific American Women's Forum, blasted the Trump administration in a statement for moving forward with the rule change.

"Over the past week, the president has decried the nationwide protests against police brutality as 'violent,'" Choimorrow said. "What is violent is his administration dismantling critical protections for people seeking health care at a time like this, when we are battling a pandemic. Robbing communities of vital medical care on the basis of our very existence during a public health emergency is violence against communities who have a shared history of discrimination."

In joint statement, leaders of the Congressional LGBTQ+ Equality Caucus, Congressional Asian Pacific American Caucus, Congressional Hispanic Caucus, Congressional Black Caucus and Congressional Pro-Choice Caucus condemned the Trump administration.

"Section 1557 provides critical protection precisely because it recognizes that discrimination can be intersectional — meaning that someone is discriminated against because of multiple identities; for example, because they are black and a woman, or because they are an immigrant and LGBTQ, or because they are elderly and disabled," the statement says. "The administration's efforts to unlawfully roll back Section 1557's protections is shameful. It not only denies people their lived experiences but undermines their ability to seek health care with dignity."

In California, Attorney General Xavier Becerra blasted the rule change.

"In the midst of a pandemic, the Trump administration chooses to make it more difficult for Americans to access lifesaving health care by weakening anti-discrimination provisions that protect equal access to care," Becerra stated, referring to COVID-19. "While HHS may be content to abandon its mission of protecting public health, California is not. Allowing discrimination against LGBTQ individuals, women, and others goes against our public health goals and our values as a nation. We will do whatever is necessary to stand up for the Americans who would disproportionately bear the brunt of this foolish policy."

Gay California Insurance Commissioner Ricardo Lara also issued a statement Friday. Last year Commissioner Lara authored a letter with other state insurance commissioners urging the U.S. secretary of Health and Human Services to withdraw the proposed rules.


"This is a sad day," Lara stated. "Despite a warning from 18 state insurance commissioners that eliminating health protections for LGBTQ people is a license to deny life-saving care, the Trump administration has once again sacrificed the health and safety of vulnerable Americans.

"With the cynicism of releasing this rule during Pride Month and on the fourth anniversary of the Pulse Nightclub shooting in Orlando when 49 people were murdered and more than 50 wounded because of bigotry, the Trump administration's intent to harm our LGBTQ community has never been more clear — particularly our transgender, black, Latino, and immigrant members who may face greater discrimination in health care as a result," he added.

Warning
Transgender advocates had warned the policy change was coming even almost before the proposed rule was announced. The expectation was based largely on the stewardship of the HHS Office of Civil Rights under Roger Severino, an anti-LGBTQ activist who came to the Trump administration after working at the Heritage Foundation.

Severino defended the rule change in a statement, saying it makes enforcement of Section 1557 consistent with the actual text of the law.

"HHS respects the dignity of every human being, and as we have shown in our response to the pandemic, we vigorously protect and enforce the civil rights of all to the fullest extent permitted by our laws as passed by Congress," Severino said. "We are unwavering in our commitment to enforcing civil rights in healthcare."

According to HHS, the rule change will "relieve the American people of approximately $2.9 billion in undue and ineffective regulatory burdens over five years."

HHS makes the rule final just before the U.S. Supreme Court is expected to deliver a decision on whether anti-LGBTQ discrimination amounts to sex discrimination, thus illegal in employment under Title VII of the Civil Rights Act of 1964.

The ruling from the Supreme Court would likely have impact on other laws relating to sex discrimination, such as Section 1557 of the Affordable Care Act. Therefore, HHS makes the decision to implement its rule change just before Supreme Court may issue a ruling in favor of LGBTQ rights, requiring the Trump administration to go back to enforcing the law consistent with the Obama-era regulations.

Anti-LGBTQ groups had been pushing for reversal of the Obama-era rule, which had made religious hospitals subject to penalty if they refused to provide transition-related care or gender reassignment surgery based on religious objections.

Praising HHS for making the rule change final was Mary Beth Waddell, senior legislative assistant for Family Research Council.

"Under the old Obama rule, medical professionals could have been forced to facilitate gender reassignment surgeries and abortions — even if they believed this was a violation of their conscience or believed it harmful to the patient," Waddell said.

It should be noted in 2016, a federal judge issued an order blocking the U.S. government from enforcing the Obama-era rule and the Trump administration declined to appeal that decision, so altering the regulations in the back end won't change anything in terms of function.

The underlying law, Section 1557 of the Affordable Care Act, is still also in place, so LGBTQ people who feel they've experienced discrimination in health care can still sue in court, but they can't take it up with the Office of Civil Rights at HHS.

Anticipating the move from HHS, LGBTQ groups announced on Friday they'd file lawsuits against the Trump administration for the rollback in transgender rights.

Alphonso David, president of the Human Rights Campaign, said in a statement LGBTQ people "should not live in fear that they cannot get the care they need simply because of who they are."

"It is clear that this administration does not believe that LGBTQ people, or other marginalized communities, deserve equality under the law," David said. "But we have a reality check for them: We will not let this attack on our basic right to be free from discrimination in health care go unchallenged. We will see them in court, and continue to challenge all of our elected officials to rise up against this blatant attempt to erode critical protections people need and sanction discrimination."

Omar Gonzalez-Pagan, senior attorney and health care strategist for the LGBTQ group Lambda Legal, also said his organization would file a lawsuit against the Trump administration.

"We will be challenging the rule because at a time when the entire world is battling a dangerous pandemic, which in the United States has infected more than 2,000,000 people and killed more than 116,000, it is critical for everyone to have ready access to the potentially life-saving health care they need," Gonzalez-Pagan said.

Updated, 6/12/20: This article was updated to include comments from CA AG Xavier Becerra, state Insurance Commissioner Ricardo Lara, and House Speaker Nancy Pelosi.

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