The Trump administration’s Department of Health and Human Services (HHS) stated in an April 5 court filing that it soon expects to propose rules paving the way for hospitals, doctors, and insurance companies to refuse care for transgender patients.
That revelation emerged in a court case brought by a small, religiously conservative medical group challenging protections implemented under Section 1557 of the Affordable Care Act, which prohibits discrimination in health coverage and care. That section of the law bans discrimination on the basis of race, color, national origin, sex, age, and disability — and HHS said in 2016 that transgender folks were covered under the sex discrimination provision of that rule.
The administration has embarked on a quest to unravel that interpretation, and it is moving to leapfrog the ongoing court case by implementing the changes before any decision comes down in the case. HHS, in its court filing, stated that the agency is expecting “to be able to publish a proposed rule soon, which, if finalized, may moot this case.”
The full details of any rule change looming in the near future are not immediately clear, but the administration is widely expected to impose protections for those who claim religious objections to providing care for trans folks.
A spokesperson for HHS, which is headed by former pharmaceutical lobbyist Alex Azar, avoided questions about the potential rules, saying only that the agency has “no updates at this time.”
The lawsuit challenging the Obama administration’s rule regarding transgender care was brought by Franciscan Health (formerly known as Franciscan Alliance), a healthcare system encompassing 14 hospitals in Indiana and Illinois that states on its website it is “continuing Christ’s mission in our Franciscan tradition.”
Franciscan Health brought the case in the federal district court in Northern Texas, whose judge, Reed O’Connor, is a favorite among social conservative and has issued a broader ruling, currently stayed, finding the entire Affordable Care Act unconstitutional.
The National Center for Transgender Equality told Gay City News that the organization is bracing for the Trump administration to announce the rule changes.
“This rule poses a direct threat to the well-being of nearly two million transgender people across the country,” said NCTE spokesperson Gillian Branstetter. “Withdrawing the 2016 guidance from the Obama administration threatens to turn back the clock on much of the progress insurers, providers, and trans advocates ourselves have made in recent years. We will oppose any rule that lets doctors pick and choose who to treat.”
Once HHS announces any new rules, the public is provided with a 60-day comment period during which folks are allowed to voice their thoughts on pending changes before the rules are officially implemented. While opponents of any proposed rule change face long odds thwarting a proposed rule change put forward by the administration during that comment period, NCTE and the Transgender Law Center (TLC) have joined forces in a campaign called #ProtectTransHealth to encourage folks to make their voices heard during the 60-day window.
“Our goal is that the public speaks out and supports health care protections for trans people, and also to highlight that the Affordable Care Act is still the law of the land and that legally trans people are still protected from discrimination,” said Anna Castro, who serves as a spokesperson for TLC.
The Transgender Legal Defense and Education Fund, noting that the Trump administration has yet to propose any new rules, declined comment for this story.
In its response to the Franciscan Health suit, the Trump administration referred to other ways in which it is backtracking on transgender rights protections — in federal employment and education law — advanced during the Obama years, noting, “The United States has returned to its longstanding position that the term ‘sex’ in Title VII does not refer to gender identity, and there is no reason why Section 1557, which incorporates Title IX’s analogous prohibition on ‘sex’ discrimination, should be treated differently.”
The Trump administration has increasingly stepped up its attacks on transgender people and the LGBTQ community at large. Most recently, transgender service members were banned from the military, while Secretary of Education Betsy DeVos has mounted a multi-pronged assault on transgender school children.
In 2017, DeVos scaled back the Office for Civil Rights’ investigations of discrimination against LGBTQ students and in 2018 the Department of Education said it would no longer probe complaints by transgender students who are unable to use the bathroom aligned with their gender identity.
The Trump administration has also rejected the Obama Justice Department’s view that sexual orientation discrimination, like that based on gender identity, is a form of sex discrimination already forbidden under federal law. That question will be tested in three cases the Supreme Court this week agreed to take up in its new term beginning in October.
