National
HHS moves again to enable anti-LGBT discrimination in health care
Proposal would allow denial of services based on religious objections
HHS has proposed a rule to allow anti-trans discrimination in health care.
On the heels of creating a new conscience division at the Department of Health & Human Services, the Trump administration has proposed a new religious exemption that critics say would allow widespread discrimination against women seeking abortions and against LGBT people.
Camilla Taylor, senior counsel for Lambda Legal, told the Washington Blade the proposal is “a travesty, outrageous” in terms of its potential to allow denial of medical services for LGBT people.
“It undoubtedly will result in increased denials of service to LGBT people,” Taylor said. “It’s intended to facilitate federally funded health care providers denying service not just to LGBT people, but to women and other vulnerable groups.”
Mara Keisling, executive director of the National Center for Transgender Equality, said in a conference call with reporters the proposal ignores federal laws against discrimination in health care.
“The Department of Health & Human Services … proposed a regulation that goes well beyond existing laws to create sweeping, dangerous exemptions that would encourage health care providers to pick and choose which patients they will and won’t treat,” Keisling said.
The language of the 216-page proposal is geared more toward allowing medical providers to deny abortion-related services on the basis of religious objections, but it contains broad language allowing for exemptions for any reason as well as code words critics say are intended to deny LGBT people medical services.
A provision allowing for exemptions on “sterilization” procedures, for example, is seen as a slur meant to include gender reassignment surgery for transgender people. Other provisions condoning religious counseling are construed as allowing federal payments for widely discredited “ex-gay” conversion therapy.
Taylor said the although rule is specific to abortion, much of the broader language in the proposal would impact access to health care for LGBT people.
“It allows federally funded accredited health care providers to deny services on religious or moral beliefs, whatever the hell that means,” Taylor said.
The proposed rule comes one day after the creation of the Conscience & Religious Freedom Division with the HHS Office for Civil Rights, which has been panned as a tool for enabling the kind of denial of services enabled in the religious freedom rule.
“It’s weaponizing the Office of Civil Rights within HHS to target people for denial of health care at taxpayer expense,” Taylor said.
On the same day as the proposed rule was published, HHS announced a similar reversal of Obama-era policy to allow states to limit access to Medicaid to health institutions, including Planned Parenthood, that provide services to which the states object.
In contrast to the Trump administration, the Obama administration issued a rule interpreting the provision barring sex discrimination under the Affordable Care Act to ban medical providers from discriminating against transgender patients or women who have had abortions. After a legal challenge, however, HHS was enjoined from enforcing that rule as a result of a court order issued by U.S. District Judge Reed O’Connor in Texas.
Even with the Trump administration’s proposed rule, the provision of Obamacare barring sex discrimination, Section 1557, remains in effect. Individuals who feel they faced anti-LGBT discrimination in the health care system still have a private right to sue in federal court under that underlying statute.
Taylor, however, said many courts have put these lawsuits on hold in anticipation of new regulations coming from the Trump administration.
“It’s unclear what remedy people will have in court,” Taylor said. “We would argue that those courts should take action, should remedy the discrimination.”
The proposed rule isn’t yet in effect. The proposal allows for a comment period of 60 days, which will proceed the finalization of the rule at a later time.
As such, many LGBT legal groups said at this time they’re unable to sue the federal government over the rule and will wait until the rule is made final.
Shannon Minter, legal director for the National Center for Lesbian Rights, said no litigation against the proposal is planned at this time.
“There is nothing in the proposed rule that specifically targets LGBT people, though some of the broad proposed definitions would open the door to potential discrimination against LGBT people and others,” Minter said. “We are still analyzing the potential ramifications. Especially since the rule is not yet final, we are not planning litigation at this time.”
Taylor said a Lambda Legal lawsuit against the new rule is “very likely,” but the timing isn’t yet clear as the comment period process unfolds.
“We are already asking people to call us if they’ve been denied health care, and the creation of this new HHS unit, I think, is an invitation to health care providers to start denying treatment to people now in anticipation that the administration is going to assist them,” Taylor said. “So there may be specific lawsuits that come up prior to the ruling going into effect that concern the administration’s efforts to provide exemptions to non-discrimination requirements.”
Tennessee
Tenn. lawmakers pass transgender “watch list” bill
State Senate to consider measure on Wednesday
The Tennessee House of Representatives passed a bill last week to create a transgender “watch list” that also pushes detransition medical treatment. The state Senate will consider it on Wednesday.
House Bill 754/State Bill 676 has been deemed “ugly” by LGBTQ advocates and criticized by healthcare information litigators as a major privacy concern.
The bill would require “gender clinics accepting funds from this state to perform gender transition procedures to also perform detransition procedures; requires insurance entities providing coverage of gender transition procedures to also cover detransition procedures; requires certain gender clinics and insurance entities to report information regarding detransition procedures to the department of health.”
It would require that any gender-affirming care-providing clinics share the date, age, and sex of patients; any drugs prescribed (dosage, frequency, duration, and method administered); the state and county; the name, contact information, and medical specialty of the healthcare professional who prescribed the treatment; and any past medical history related to “neurological, behavioral, or mental health conditions.” It would also mandate additional information if surgical intervention is prescribed, including details on which healthcare professional made a referral and when.
HB 0754 would also require the state to produce a “comprehensive annual statistical report,” with all collected data shared with the heads of the legislature and the legislative librarian, and eventually published online for public access.
The bill also reframes detransitioning as a major focus of gender-affirming healthcare — despite studies showing that the number of trans people who detransition is statistically quite low, around 13 percent, and is often the result of external pressures (such as discrimination or family) rather than an issue with their gender identity.
This legislation stands in sharp contrast to federal protections restricting what healthcare information can be shared. In 1996, Congress passed the Health Insurance Portability and Accountability Act, or HIPAA, requiring protections for all “individually identifiable health information,” including medical records, conversations, billing information, and other patient data.
Margaret Riley, professor of law, public health sciences, and public policy at the University of Virginia, has written about similar efforts at the federal level, noting the Trump-Vance administration’s push to subpoena multiple hospitals’ records of gender-affirming care for trans patients despite no claims — or proof — that a crime was committed.
It has “sown fear and concern, both among people whose information is sought and among the doctors and other providers who offer such care. Some health providers have reportedly decided to no longer provide gender-affirming care to minors as a result of the inquiries, even in states where that care is legal.” She wrote in an article on the Conversation, where she goes further, pointing out that the push, mostly from conservative members of the government, are pushing extracting this private information “while giving no inkling of any alleged crimes that may have been committed.”
State Rep. Jeremy Faison (R-Cosby), the bill’s sponsor, said in a press conference two weeks ago that he has met dozens of individuals who sought to transition genders and ultimately detransitioned. In committee, an individual testified in support of the bill, claiming that while insurance paid for gender-affirming care, detransition care was not covered.
“I believe that we as a society are going to look back on this time that really burst out in 2014 and think, ‘Dear God, What were we thinking? This was as dumb as frontal lobotomies,’” Faison said of gender-affirming care. “I think we’re going to look back on society one day and think that.”
Jennifer Levi, GLAD Law’s senior director of Transgender and Queer Rights, shared with PBS last year that legislation like this changes the entire concept of HIPAA rights for trans Americans in ways that are invasive and unnecessary.
“It turns doctor-patient confidentiality into government surveillance,” Levi said, later emphasizing this will cause fewer people to seek out the care that they need. “It’s chilling.”
The Washington Blade reached out to the American Civil Liberties Union of Tennessee, which shared this statement from Executive Director Miriam Nemeth:
“HB 754/SB 676 continues the ugly legacy of Tennessee legislators’ attacks on the lives of transgender Tennesseans. Most Tennesseans, regardless of political views, oppose government databases tracking medical decisions made between patients and their doctors. The same should be true here. The state does not threaten to end the livelihood of doctors and fine them $150,000 for safeguarding the sensitive information of people with diabetes, depression, cancer, or other conditions. Trans people and intersex people deserve the same safety, privacy, and equal treatment under the law as everyone else.”
National
Glisten’s 30th annual Day of Silence to take place April 10
Campaign began as student-led protests against anti-LGBTQ bullying, discrimination
Glisten’s 30th annual Day of Silence will take place on April 10.
The annual Day of Silence began as a student-led protest in response to bullying and discrimination that LGBTQ students face. It is now a national campaign for the LGBTQ community and their allies to come together for LGBTQ youth.
It takes place annually and has multiple ways for supporters to get involved in the movement.
Glisten, originally GLSEN, champions LGBTQ issues in schools, grades K-12. Glisten’s mission is to create more inclusive and accepting environments for LGBTQ students through curriculum, supportive measures, education campaigns, and engagement, such as the Day of Silence.
There are three main ways for the community to get involved in the Day of Silence.
Glisten has a Day of Silence frame, a series of pictures used as profile photos across social media that feature individuals holding signs. The signs allow for personalization, by providing a space to put the individual’s name, followed by filling in the prompt “ … and I am ENDING the silence by…”
Participants are encouraged to post the photo on social media and use it as a profile picture. The templates can be found on Google Drive through this link.
Using #DayOfSilence and #NSCS, as well as tagging Glisten’s official Page @glistencommunity, is another way to participate in the Day of Silence.
Glisten also encourages participants to tag creators, friends, family and use a call to action in their caption, to call attention to the facts and stories behind the Day of Silence.
“Today’s administration in the U.S. wants us to stay silent, submit to their biased and hurtful conformity, and stop fighting for our right to be authentically ourselves,” said Glisten CEO Melanie Willingham-Jaggers. “We urge supporters to use their social platforms and check in with local chapters to be boots on the ground to help LGBTQ+ students feel seen, heard, supported, and less alone. By participating in the ‘Day of Silence,’ you are showing solidarity with young people as they navigate identity, safety, and belonging. Our voices matter.”
South Carolina
Man faces first S.C. ‘hate intimidation’ charge
Timothy Truett allegedly shot at gay club in Myrtle Beach on April 1
A South Carolina man remains in custody on a more than $300,000 bond after he allegedly opened fire at a Myrtle Beach nightclub on April 1, according to WMBF.
Reports say 37-year-old Timothy James Truett Jr., of Clover, S.C., was detained by the Myrtle Beach Police Department after the April 1 incident outside Pulse Ultra Club. He was later arrested and charged with possession of a weapon during a violent crime, discharging a firearm into a dwelling, discharging a firearm within city limits, malicious injury to real property valued over $5,000, and assault or intimidation due to political opinions or the exercise of civil rights.
At 10:57 a.m. on April 1, officers responded to a call about a possible shooting at Pulse Ultra Club, located in the 2700 block of South Kings Highway.
In an affidavit released later, the club’s owner, Ken Phillips, said he was doing paperwork that morning when he heard “five or six” gunshots. He went outside and found a window and the windshield of his SUV shattered by bullets. An SUV with blue plastic covering one window was left at the scene.
Police later reviewed footage that showed a silver vehicle stopping in the middle of the road. The video appeared to capture muzzle flashes coming from the passenger-side window.
According to the affidavit, an officer later pulled over a vehicle driven by Truett and found spent shell casings in the back seat, along with a gun.
Documents do not detail why Truett was ultimately charged under the state law covering assault or intimidation tied to political opinions or the exercise of civil rights.
As of April 1, records show Truett is being held in Horry County on a combined bond of more than $312,000.
WMBF spoke with Phillips after the incident and asked whether there was any prior conflict that might have led to the shooting.
“I don’t know if it’s personal, I don’t know if it’s related to being gay, I don’t know if it’s related to the bar issues,” Phillips told WMBF. “Anybody with a mindset of pulling out a weapon in broad daylight is not right.”
“My primary concern has and always will be the safety of my community and my customers,” he added. “It’s given me great concern … as to how far people will go.”
WMBF also spoke with Adam Hayes, vice chair of Myrtle Beach’s Human Rights Coalition, who was involved in pushing for the ordinance. He said that while the incident itself is troubling, it shows the policy is being put to use.
The ordinance is intended to deter “crimes that are motivated by bias or hate towards any person or persons, in whole or in part, because of the actual or perceived” identity, in the absence of a statewide hate crime law.
“It’s nice to see that something we put into policy is not just a piece of paper, that it’s actually being used,” said Hayes.
He said the shooting underscores the need for a statewide hate crime law in South Carolina and added that the incident has left the local LGBTQ community shaken.
South Carolina and Wyoming are the only two states in the U.S. without a comprehensive statewide hate crime law.
Truett remains in jail as of publication.
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