May 23, 2018 at 3:07 pm EDT | by Chris Johnson
127 House Dems urge White House to keep rule for trans health care

Rep. Julia Brownley (D-Calif.) is urging the White House to preserve a proposed rule in favor of trans health care. (Photo public domain)

A group of 127 House Democrats led by Reps. Julia Brownley (D-Calif.) is calling on the White House to keep intact an Obama-era rule barring medical providers from denying health care to transgender patients, including gender reassignment surgery.

The letter, dated May 23 and sent to Office of Management & Budget Director Mick Mulvaney, points to reports a rule change is pending before the White House and calls on Mulvaney “to reject a proposed rule that undermines these important protections.”

“We urge you to abandon any proposal that would erode the Health Care Rights Law’s important protection, undermine Congress’ sole lawmaking authority and allow health care providers to discriminate against their patients,” the letter says.

Other lawmakers who spearheaded the letter are Rep. Jerrold Nadler (D-N.Y.), Diana DeGette (D-Colo.) and Barbara Lee (D-Calif.).

The Obama-era rule is based on Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of sex in health care. The Obama administration interpreted that language to apply to transgender people seeking health care, including transition-related care such as gender reassignment surgery.

Although the Trump administration hasn’t explicitly stated it plans to repeal the rule, that seems to be the intent based on media reports and filings by the Justice Department in litigation against the rule. Another possibility is the Trump administration would seek to impose a religious exemption.

The letter to the White House warns Mulvaney that even a religious exemption would have deleterious consequences.

“Adding any type of religious exemption, or enforcing the Health Care Rights Law in a way that allows for a religious exemption, is antithetical to the purpose and language of the Health Care Rights Law and would undermine Congress’ lawmaking authority,” the letter says.

Earlier this month, Secretary of Health & Human Services Alex Azar told the Blade during an appearance at the White House press briefing he had no knowledge of potential repeal of this rule. An HHS spokesperson said later the secretary was briefed on the matter.

The Obama-era rule is currently moot in any event. Last year, U.S. District Judge Reed O’Connor issued an injunction barring the U.S. government from enforcing the rule as a result of litigation filed by Texas Attorney General Ken Paxton.

Despite this court order — and even if the Trump administration were to reverse the underlying rule — transgender people could still sue medical providers in court based on the underlying law in the Affordable Care Act that prohibits discrimination in health care on the basis of sex. A growing number of courts are interpreting laws against sex discrimination to apply to LGBT people regardless of the views of the Trump administration.

The White House Office of Management & Budget didn’t respond to the Blade’s request to comment Wednesday on the letter.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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