“This is in so many ways shocking—even for this administration—to announce that it intends to finalize this rule that would limit access to health care for so many vulnerable populations in the midst of a public health crisis.”
The Trump administration announced last week that it is finalizing a rollback of a rule that protects LGBTQ patients from discrimination in health care on the basis of sex and gender identity.
The rollback, first proposed by the Department of Health and Human Services in May 2019, would reverse a 2016 interpretation of a section of the Affordable Care Act that bars discrimination on the basis of race, color, national origin, age, disability or sex. The Obama administration interpreted “sex” to include gender identity and stereotype, making it illegal for doctors, nurses, hospitals and other providers to deny care to someone simply because they did not approve of their sexual orientation or gender identity.
The impending finalization of the new rule, first reported by Politico, will allow those very same providers to now deny care to anyone who they perceive as transgender or gay without repercussions. That the rollback is coming in the middle of a global pandemic has alarmed and angered LGBTQ advocates, who believe it is an attempt to make it harder for LGBTQ people, particularly transgender people, to access health care.
“This is in so many ways shocking—even for this administration—to announce that it intends to finalize this rule that would limit access to health care for so many vulnerable populations in the midst of a public health crisis,” said Omar Gonzalez-Pagan, senior attorney at Lambda Legal, a national legal organization litigating and advocating for LGBTQ people.
Alphonso David, president of the Human Rights campaign, also blasted the rule in a statement.
“News flash Mr. President — we get sick, we need health care and we should be protected under law,” David said. “Amid a global pandemic—which is already disproportionately affecting LGBTQ people—the Trump administration’s efforts to remove existing non-discrimination protections for the LGBTQ community is unacceptable, blatantly offensive, and cruel.”
If finalized, the Trump administration rule would:
- Allow hospitals to admit trans men and women based on their sex at birth.
- Make it legal for insurance companies to refuse coverage on transition-related care such as gender reassignment surgery, hormone replacement therapy, or other gynecological care.
- Dilute protections for people with limited English-language proficiency by removing requirements that providers inform patients of their ability to have “significant documents” translated into at least 15 other languages.
The Trump administration’s efforts to undo the Obama-era rule are likely to lead to a surge in dsicrimination against transgender patients, advocates say. Trans people already face high levels of discrimination from healthcare providers. A 2010 study from Lambda found that 56% of LGB people and 70% of transgender and gender non-conforming people reported experiencing discrimination by healthcare providers, such as refusal of care, harsh language, and physical roughness because of their sexual orientation or gender identity.
Another 2015 report from the National Center for Transgender Equality found that 23% of transgender respondents did not see a doctor when they needed to because they were afraid of being mistreated as a transgender person. Even more alarming was that 55% of transgender respondents who sought coverage for transition-related surgery were denied.
Faced with this data and persistent advocacy from LGBTQ activists and healthcare experts, the Obama administration moved to implement its non-discrimination rules to provide protections for LGBTQ patients. But the rule was quickly met with lawsuits from a group of states and religious medical providers, and a federal judge in Fort Worth, Texas, issued a nationwide injunction in December 2016 blocking the rule from taking effect. In his opinion, Judge Reed O’Connor, wrote that “Congress did not understand ‘sex’ to include ‘gender identity.’”
O’Connor ultimately struck down the rule in October 2019, and the Trump administration says it’s now filling a void left by that ruling.
“A federal court has vacated the gender identity provisions of the regulation and we are abiding by that court order,” an HHS spokesperson told Politico. “We do not comment on the rulemaking process and refer you to recent public filings made by the Department of Justice before the Supreme Court on what constitutes sex discrimination under civil rights laws.”
Supporters of the Trump administration’s efforts have falsely stated that doctors were being forced to perform gender reassignment surgeries that made them uncomfortable, but in reality, these surgeries are performed by highly specialized providers. Trans people are unlikely to go to a doctor who isn’t experienced in the procedure.
Roger Severino, the HHS civil rights chief, defended the Trump administration’s efforts to protect vulnerable populations.
“As we have shown in our recent efforts to protect persons from disability and age discrimination during the pandemic, HHS will vigorously enforce civil rights laws as passed by Congress, before, during, and after any rulemaking,” Severino told Politico in a statement. He added that the Obama administration “declined to recognize sexual orientation as a protected category under Obamacare, and HHS proposed to leave that judgment undisturbed” in the rule, first proposed in 2019.
Before he joined HHS, Severino was a vocal critic of the Obama administration’s efforts to protect LGBTQ people from discrimination, writing in a 2016 Heritage Foundation report that the protections “threaten the religious liberty, freedom of conscience, and independent medical judgment of health care professionals.” Nowhere, however, did he acknowledge the freedom of transgender people to obtain care without being discriminated against.
The timing of this rule alarmed Gonzalez-Pagan not only because it comes during a pandemic, but also because it comes weeks before the U.S. Supreme Court is expected to issue a decision on whether the Civil Rights Act of 1964 protects LGBTQ workers from employment discrimination on the basis of sexual orientation and transgender status.
While that case focuses on workers, if the court sides with LGBTQ individuals, it could have a ripple effect that forces Trump administration officials to scrap this new rule and start over.
“It makes no sense legally because we are expecting a decision from the Supreme Court that may provide guidance as to what sex discrimination means,” Gonzalez-Pagan said. “Although that case is specific to employment, you know, it is certainly informative, and for them not to even wait for that to happen shows that their real goal here is to limit access to care for anybody who’s an other.”
Gonzalez-Pagan said the rule was just the latest example of a long line of “soulless efforts” by the Trump administration to “eliminate the protections against discrimination” targeting minorities and vulnerable populations. These efforts include the rescission of protections for transgender students, a ban on openly transgender individuals serving in the U.S. military, and a proposal to allow foster care and adoption agencies to refuse to allow LGBT families to adopt on faith-based grounds.
Lambda Legal, which has taken legal action against the Trump administration several times over its policies, plans to sue again if and when the administration officially implements this rule. “The administration can expect legal action should they finalize this rule,” Gonzalez-Pagan said.