The White House has declined to comment on recent indications the Trump administration is set to undo an Obama-era rule barring medical providers from refusing service to transgender people, including gender reassignment surgery.
The Washington Blade sought to ask White House Press Secretary Sarah Huckabee Sanders about the proposed reversal Monday during the daily briefing, but the spokesperson didn’t call on the Blade for a question, nor did any other reporter ask about the issue following a report on the development in the New York Times.
In response to an email request for more information, the White House referred the Washington Blade to HHS, which didn’t respond to a request for comment. OMB also didn’t respond to the Blade’s request for information.
The Obama-era rule interpreted Section 1557 of the Affordable Care Act, which bars discrimination in health care on the basis of sex, to bar refusal of service to transgender people based on their gender identity, including the denial of transition-related care such as gender reassignment surgery.
As the Times first reported, the U.S. Justice Department noted in a filing last week in a lawsuit challenging the rule the Department of Health & Human Services “had submitted a draft of a proposed rule” for review to the White House Office of Management & Budget. The OMB website reveals it’s considering a proposed rule related to “non-discrimination in health programs and activities.”
Although the Justice Department filing doesn’t explicitly say the pending proposal would undo the Obama-era rule, that seems likely based on the decision to file it in a lawsuit challenging the provision and the history of the Trump administration.
The Trump administration has already declared federal law barring discrimination on the basis of sex doesn’t apply to cases of transgender discrimination in education and employment. The Education and Justice Departments rolled back Obama-era guidance requiring schools to allow transgender kids to use the restrooms consistent with their gender identity. Additionally, the Justice Department reversed a memo from former U.S. Attorney General Eric Holder finding Title VII of Civil Rights of 1964 prohibits anti-trans discrimination in the workforce.
The Justice Department filing indicates the proposed rule change will be published in the Federal Register and made available for public comment — but says nothing about timing for when that will happen.
The Obama-era rule is currently moot in any event. Last 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.
Roger Severino, an anti-trans scholar at the Heritage Foundation-turned-director of the Office for Civil Rights at HHS, cited the court ruling in an interview with the New York Times as evidence it’s time to re-examine the rule.
“The court held that the regulation’s coverage of gender identity and termination of pregnancy was contrary to law and exceeded statutory authority, and that the rule’s harm was felt by health care providers in states across the country, so a nationwide injunction was appropriate,” Severino is quoted as saying. “The court order is binding on HHS, and we are abiding by it.”
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.
David Stacy, government affairs director for the Human Rights Campaign, criticized the Trump administration in a statement.
“No health care provider should be able to turn someone away because of their gender identity,” Stacy said. “[Trump’s] plans to eliminate the regulations spelling out these crucial non-discrimination protections is unconscionable.”