In a surreptitious move on the Friday before Memorial Day — when much of Washington has already vacated town for the weekend — the Trump administration announced a proposed rule to undermine an Obama-era regulation ensuring non-discrimination in health care for transgender people and women who have had abortions.
The proposed rule that the Department of Health & Human Services would eliminate asserts discrimination is prohibited under Section 1557 of the Affordable Care Act, which bars sex discrimination in health care.
In a statement announcing the proposed rule change, HHS is oblique in describing what it would accomplish and strikes a positive note, asserting it would “maintain vigorous civil rights enforcement on the basis of race, color, national origin, disability, age and sex” and save U.S. taxpayers $3.6 billion over the course of five years.
“We are committed to full enforcement of civil rights laws before, during and after any rulemaking,” Roger Severino, director of the HHS Office of Civil Rights, said in a statement. “We are also committed to the elimination of regulations that contradict law or raise the costs of healthcare without achieving intended results.”
But the devil’s in the details. A look at the language of the 204-page proposed regulation reveals it would eliminate “gender identity” the definition of sex under Section 1557 of Obamacare, and incorporate laws allowing health care providers to decline to perform abortion into the non-discrimination regulation. The regulation also seeks to roll back protections for individuals seeking health care with limited English proficiency.
“The current rule’s provisions were not justified by need, were overly burdensome compared to the benefit provided, and created inconsistent requirements for HHS funded health programs or activities as compared to HHS funded human services programs or activities,” the rule says.
Under the interpretation of the law as proposed by the rule, health care providers and health insurance would be able to deny to transgender people transition-related care, including gender reassignment surgery. Transgender people and women who have had abortions could also be subjected to denial of general health care.
Laura Durso, vice president of LGBT research and communications at the Center for American Progress, said in a conference call with reporters the rule would have devastating effects on both women and LGBT people.
“Through this rule, the Trump administration is working to undermine part of the Affordable Care Act that bans discrimination in health care and insurance coverage,” Durso said. “It has proposed a rule that will weaken enforcement of the Health Care Rights Law…particularly when it comes to protecting women, LGBTQ patients and people with limited English proficiency. Eliminating the strong, clear rules prohibiting discrimination will lead to confusion, unequal access, and potential rollbacks of landmark progress.”
The proposed rule was made public weeks after the Trump administration unveiled a different “conscience clause” for health care workers to decline to perform procedures, such as gender reassignment surgery or abortions, out of religious objections. A coalition of states with Democratic attorneys general have filed a federal lawsuit in New York City challenging the legitimacy of the rule.
Jocelyn Samuels, executive director of the Williams Institute at the University of California, Los Angeles, said in a conference report the “conscience” rule was more geared toward specific procedures, but the latest roll back was more general.
“The conscience rule released a couple of weeks ago was focused on implementation of specific statutes that are very narrowly drawn to authorize religious objections to certain services when they’re offered by certain providers who get certain funding streams,” Samuels said.
“And, of course,” Samuels continued, “One of the concerns about that rule was that it expanded authorizations for these denials beyond what was authorized in those very specific statutes, but this rule seems to intend an even broader application of religious exemptions and suggests that religiously affiliated health care providers would be able to opt out of providing any service to any individual that in any way conflicted with their asserted religious beliefs. That, obviously, could result in a huge loophole for application of non-discrimination protections in the world of health care services.”
More generally, the Trump administration for some time has steadily rolled back non-discrimination protections for transgender people in federal regulations. Just this week, the Department of Housing & Urban Development announced a rule gutting a different Obama-era rule ensuring homeless shelters receiving federal funds can’t turn away transgender people.
It should be noted the regulation the Trump administration seeks to rescind with respect to Section 1557 of Obamacare was already moot. U.S. District Judge Reed O’Connor had enjoined the U.S. government from enforcing the Obama-era rule as a result of a lawsuit filed by Texas Attorney General Ken Paxton. The Trump administration under former U.S. Attorney General Jeff Sessions declined to appeal the decision.
But the move from the Trump administration to roll back the underlying rule under its own volition has been expected for some time. For years, transgender advocates have sounded the alarm over reported plans the HHS would rescind the regulation, with Severino in charge of the HHS Office of Civil Rights. As a scholar at the Heritage Foundation, Severino was hostile to transgender rights and supported North Carolina’s anti- trans House Bill 2.
The proposed regulation denies discrimination against transgender people is unlawful despite decades of case law interpreting laws barring sex discrimination to apply to cases of anti-trans discrimination. Over nearly two decades, eight federal appeals courts and 35 federal district courts have affirmed anti-transgender discrimination is sex discrimination and unlawful, according to the National Center for Transgender Equality.
However, that could change soon. The U.S. Supreme Court has agreed to take up the case of Harris Funeral Homes v. EEOC involving a transgender worker who was terminated after declaring she’d transition on the job. The case will determine once and for all whether Title VII of the Civil Rights Act of 1964, which bars sex discrimination in employment, applies to cases for transgender workplace protection.
The ruling would apply to all federal laws barring sex discrimination, not just employment civil rights laws. The Supreme Court could either affirm decades of case law protecting transgender people, or throw them out with a single ruling.
Mara Keisling, executive director of the National Center of Transgender Equality, said the upcoming final decision from the Supreme Court heightens the absurdity of the new HHS proposed regulation.
“Part of the…cruelty, the dumbness of doing this rule right now, particularly around the transgender issues is that it may be rendered moot by a Supreme Court decision, which we expect to have…certainly in the coming year, but maybe in the coming months,” Keisling said. “So it doesn’t make sense that they did this with the Harris case getting cert to the Supreme Court.”