Secretary of Health & Human Services Alex Azar dodged a question Friday on whether the Trump administration would repeal an Obamacare rule barring medical practitioners from denying health care to transgender people, including gender reassignment surgery.
During the White House daily briefing, which Azar attended to flesh out President Trump’s plan to lower drug prices that he announced moments earlier in the Rose Garden, the health secretary professed he was unaware of the issue in response to a question from the Washington Blade.
“I’m not familiar with that particular issue,” Azar said. “I’m going to talk about drug prices. I’m not familiar with that. I’ll look into that when I get back over to the department.”
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 health care services to transgender people based on their gender identity, including transition-related care such as gender reassignment surgery.
But in a lawsuit challenging the rule, the U.S. Justice Department noted in a filing last month the Department of Health & Human Services “had submitted a draft of a proposed rule” on Section 1557 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.
Ian Thompson, legislative director for the American Civil Liberties Union, said Azar knows more than he’s saying about the proposed plan to kill the Obamacare rule.
“Secretary Azar can claim ignorance, but it rings hollow,” Thompson said. “Under President Trump, extreme opponents of transgender people and reproductive health care have been given free rein at HHS. No one should live in fear of being denied health care because of who they are.”
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.
Sarah Warbelow, legal director for the Human Rights Campaign, also lambasted Azar for his response and doubted its veracity.
“It is disingenuous and deeply concerning that Secretary Azar is supposedly unaware of a proposed rule change currently circulating from the agency under his stewardship that would eliminate express protections for LGBTQ people in health care,” Warbelow said.
UPDATE: Caitlyn Oakley, an HHS spokesperson, told the Washington Blade on Sunday in response to a request for an update Azar is now familiar with the issue.
“Secretary Azar has been briefed on this subject,” Oakley said. “HHS’s Office for Civil Rights will continue to vigorously enforce all prohibitions on discrimination in health care on the basis of race, color, national origin, sex, age and disability according to the law and court orders, before, during and after any rulemaking.”