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HHS moves again to enable anti-LGBT discrimination in health care

Proposal would allow denial of services based on religious objections

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Transgender Center of Excellence, gender dysphoria, transgender, caduceus, medicare, gay news, Washington Blade, health

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.”

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Florida House committee passes “Don’t Say Gay” bill

Equality Florida quickly condemned the measure

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The Florida State Capitol (Washington Blade photo by Yariel Valdés González)

The Republican majority Florida House Education and Employment Committee on Thursday passed House Bill 1557, the Parental Rights in Education bill, colloquially referred to as the “Don’t Say Gay” bill advancing the measure to the full House.

HB 1557 and its companion bill, Senate Bill 1834, would ban classroom discussions about sexual orientation and gender identity in schools, erasing LGBTQ identity, history, and culture — as well as LGBTQ students themselves.

The bill also has provisions that appear to undermine LGBTQ support in schools and include vague parental notification requirements which could effectively “out” LGBTQ-identifying students to their parents without their consent.

“The Trevor Project’s research has found that LGBTQ youth who learned about LGBTQ issues or people in classes at school had 23 percent lower odds of reporting a suicide attempt in the past year. This bill will erase young LGBTQ students across Florida, forcing many back into the closet by policing their identity and silencing important discussions about the issues they face,” said Sam Ames, director of advocacy and government affairs at the Trevor Project. “LGBTQ students deserve their history and experiences to be reflected in their education, just like their peers.”

In an email to the Los Angeles Blade, Brandon J. Wolf, the press secretary for Equality Florida noted; “Governor DeSantis’ march toward his own personal surveillance state continues. Today, the Don’t Say Gay bill, a piece of legislation to erase discussion of LGBTQ people from schools in Florida, passed its first committee and became another component of an agenda designed to police us in our classrooms, doctor’s offices, and workplaces. Make no mistake — LGBTQ people are your neighbors, family members, and friends. We are a normal, healthy part of society and we will not be erased.”

The Trevor Project’s 2021 National Survey on LGBTQ Youth Mental Health found that more than 42 percent of LGBTQ youth seriously considered attempting suicide in the past year, including more than half of transgender and non-binary youth.

According to a recent poll conducted by Morning Consult on behalf of The Trevor Project, 85 percent of transgender and non-binary youth — and two-thirds of all LGBTQ youth (66 percent) — say recent debates about state laws restricting the rights of transgender people have negatively impacted their mental health.

When asked about proposed legislation that would require schools to tell a student’s parent or guardian if they request to use a different name/pronoun or if they identify as LGBTQ at school, 56 percent of transgender and non-binary youth said it made them feel angry, 47 percent felt nervous and/or scared, 45 percent felt stressed, and more than 1 in 3 felt sad.

If you or someone you know needs help or support, the Trevor Project’s trained crisis counselors are available 24/7 at 1-866-488-7386, via chat at TheTrevorProject.org/Get-Help, or by texting START to 678678. 

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NCAA adopts new policy amid fervor over transgender athletes

Sport-by-sport approach requires certain levels of testosterone

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The NCAA has adopted new policy amid a fervor over transgender athletes.

The National Collegiate Athletic Association has announced it has adopted new procedures on competition of transgender athletes, creating a “sport-by-sport” approach that also requires documentation of testosterone levels across the board amid a fervor of recently transitioned swimmers breaking records in women’s athletics.

The NCAA said in a statement its board of governors voted on Wednesday in support of the “sport-by-sport” approach, which the organization says “preserves opportunity for transgender student-athletes while balancing fairness, inclusion and safety for all who compete.”

Although the policy defers to the national governing bodies for individual sports, it also requires transgender athletes to document sport-specific testosterone levels beginning four weeks before their sport’s championship selections. The new policy, which consistent with rules for the U.S. Olympics, is effective 2022, although implementation is set to begin with the 2023-24 academic year, the organization says.

John DeGioia, chair of the NCAA board and Georgetown president, said in a statement the organization is “steadfast in our support of transgender student-athletes and the fostering of fairness across college sports.”

“It is important that NCAA member schools, conferences and college athletes compete in an inclusive, fair, safe and respectful environment and can move forward with a clear understanding of the new policy,” DeGioia said.

More specifically, starting with the 2022-23 academic year, transgender athletes will need to document sport-specific testosterone levels beginning four weeks before their sport’s championship selections, the organizational. These athletes, according to the NCAA, are also required to document testosterone levels four weeks before championship selections.

In terms of jurisdiction, the national governing bodies for individual sports are charged determines policies, which would be under ongoing review and recommendation by the NCAA, the organizational says. If there is no policy for a sport, that sport’s international federation policy or previously established International Olympics Committee policy criteria would be followed.

The NCAA adopts the policy amid controversy over University of Pennsylvania swimmer Lia Thomas smashing records in women’s swimming. Thomas, which once competed as a man, smashed two national records and in the 1,650-yard freestyle placed 38 seconds ahead of closest competition. The new NCAA policy appears effectively to sideline Thomas, who has recently transitioned and unable to show consistent levels of testosterone.

Prior to the NCAA announcement, a coalition of 16 LGBTQ groups, including the Human Rights Campaign and Athlete Ally, this week sent to a letter to the collegiate organization, urging the organizations strengthen non-discrimination protections as opposed to weakening them. The new policy, however, appears to head in other direction, which the LGBTQ groups rejected in the letter.

“While decentralizing the NCAA and giving power to conferences and schools has its benefits, we are concerned that leaving the enforcement of non-discrimination protections to schools will create a patchwork of protections rather than a comprehensive policy that would protect all athletes, no matter where they play,” the letter says. “This would be similar to the patchwork of non-discrimination policies in states, where marginalized groups in some states or cities are protected while others are left behind by localities that opt not to enact inclusive policies.”

JoDee Winterhof, vice president of policy and political affairs for the Human Rights Campaign, said in a statement after the NCAA announcement the new policy was effectively passing the buck.

“If the NCAA is committed to ensuring an environment of competition that is safe, healthy, and free from discrimination, they cannot dodge the question of how to ensure transgender athletes can participate safely,” Winterhof said. “That is precisely why we and a number of organizations across a wide spectrum of advocates are urging them to readopt and strengthen non-discrimination language in their constitution to ensure the Association is committed to enforcing the level playing field and inclusive policies they say their values require. Any policy language is only as effective as it is enforceable, and with states passing anti-transgender sports bans, any inclusive policy is under immediate threat. We are still reviewing the NCAA’s new policy on transgender inclusion and how it will impact each and every transgender athlete.”

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Transgender rights group’s Los Angeles office receives bomb threat

[email protected] Coalition evacuated

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(Public domain photo)

A bomb threat was phoned in Wednesday afternoon to the Wilshire Boulevard Koreatown offices of the [email protected] Coalition, Bamby Salcedo, the president and CEO of the non-profit organization told the Los Angeles Blade.

According to Salcedo, an unidentified male caller told the staff person who answered at approximately 3 p.m., while delivering the threat said; “You’re all going to die.” The staff immediately evacuated everyone from their offices and then contacted the Los Angeles Police Department for assistance.

Officers, specialists and detectives from the Rampart Division of the LAPD responded and swept the building. A spokesperson for the LAPD confirmed that the incident is under active investigation but would make no further comment.

On a Facebook post immediately after the incident the non-profit wrote; “To ensure the safety of our clients and staff members, we ask that you please NOT come to our office.”

In a follow-up post, Salcedo notified the organization and its clientele that the LAPD had given the all-clear and that their offices would resume normal operations Thursday at 9:00 a.m. PT.

“Thank you for your messages and concern for our staff and community,” Salcedo said.

“No amount of threats can stop us from our commitment to the TGI community,” she added.

The [email protected] Coalition was founded in 2009 by a group of transgender and gender non-conforming and intersex (TGI) immigrant women in Los Angeles as a grassroots response to address the specific needs of TGI Latino immigrants who live in the U.S.

Since then, the agency has become a nationally recognized organization with representation in 10 different states across the U.S. and provides direct services to TGI individuals in Los Angeles.

In 2015, the [email protected] Coalition identified the urgent need to provide direct services to empower TGI people in response to structural, institutional, and interpersonal violence, and the Center for Violence Prevention and Transgender Wellness was born.

Since then, the organization has secured funding from the state and local government sources as well as several private foundations and organizations to provide direct services to all TGI individuals in Los Angeles County.

The [email protected] Coalition’s primary focus is to change the landscape of access to services for TGI people and provide access to comprehensive resource and services that will improve the quality of life of TGI people.

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