August 7, 2020 at 1:11 pm EDT | by Chris Johnson
Trump’s own AIDS council opposes his anti-trans health rule
The Presidential Advisory Council on HIV/AIDS adopted a resolution urging HHS not to implement its anti-trans health rule.

President Trump’s own HIV/AIDS advisory council adopted a resolution Thursday urging his administration not to implement a new regulation that would enable discrimination against transgender patients in health care.

The measure, which the Presidential Advisory Council on HIV/AIDS adopted unanimously, cites as reasons to scrap the anti-trans rule the recent U.S. Supreme Court decision in Bostock v. Clayton County, which found anti-LGBTQ discrimination is a form of sex discrimination under the law, and the Trump administration plan to beat HIV/AIDS by 2030.

“Be it resolved, in light of the recent Supreme Court ruling and our prior conversations with OCR, PACHA urges the Secretary to apply the same definition of discrimination ‘on the basis of sex’ to healthcare and not move forward with implementing OCR’s rule changes to Section 1557 of the Affordable Care Act that are slated to go into effect on August 18, 2020,” the resolution says.

In the event the Department of Health & Human Services moves forward with the rule, the resolution calls on the Office of Civil Rights to “have a clearly defined system” to report instances of LGBTQ people being denied care.

Days before the Bostock decision in June, HHS made the rule final, vacating protections under a 2016 Obama-era rule prohibiting discrimination in health care and health insurance on the basis of sex stereotyping and transgender status. The Obama-era regulation was based on Section 1557 of the Affordable Care Act, which bars discrimination on the basis of sex in health care.

PACHA adopted the resolution with limited discussion. Carl Schmid, co-chair of the Presidential Advisory Council on HIV/AIDS and executive director of HIV+Hepatitis Policy Institute, said he’d “fully support” the measure.

Justin Smith, an Atlanta-based HIV/AIDS activist and director of the Campaign to End AIDS, introduced the measure and said it came about based on previous talks with the HHS Office of Civil Rights, which gave the council vague assurances in a written response deemed insufficient in light of the Supreme Court decision.

“There have been some really important changes in our legal landscape,” Smith said. “So, back in June, the Supreme Court ruled that under Title VII of the Civil Rights of 1964, that employment discrimination against lesbian, gay, bisexual and transgender folks on the basis of sex is actually against the law, which could have some profound implications for this proposed rule change to Section 1557.”

In a legal sense, nothing had practically changed with the Trump administration’s rollback because U.S. District Judge Reed O’Connor in Texas in 2016 issued a nationwide injunction barring the U.S. government from enforcement of the Obama-era rule. The Trump administration later declined to appeal that court order before deadline.

Roger Severino, director of the Office for Civil Rights at HHS, defended the rule change as necessary in response to the 2016 court injunction in a statement last month to media outlets.

“The gender identity and termination of pregnancy provisions of the 2016 rule were held unlawful and unenforceable by a federal court in December 2016 and a court vacated that language in October 2019,” Severino said. “Further, it was the Obama, not Trump, administration that decided to exclude sexual orientation as a protected category in this health care rule a mere four years ago.”

But the final rule, nonetheless, prompted a flurry of lawsuits from LGBTQ legal advocates who say vacating the protections contravenes the law, not just on the grounds of the Bostock decision, but constitutional claims of equal protection and due process.

In response to one lawsuit filed by Lambda Legal, U.S. Judge James Boasberg in D.C., an Obama appointee, held a hearing Monday to consider a preliminary injunction against the measure. Boasberg, who asked parties whether HHS’ hands were tied in issuing the anti-trans rule, said he’d wait for the U.S. government to file an additional brief before rendering a decision, which he said will likely not come down before the rule takes effect on Aug. 18.

According to the 2015 U.S. Transgender Survey, transgender respondents also encountered high levels of mistreatment when seeking health care. One-third of those who saw a health care provider in the past year said they had at least one negative experience related to being transgender, such as being verbally harassed or denied treatment.

Additionally, 23 percent of respondents said they didn’t seek necessary health care due to fear of being mistreated as a transgender person, and one-third didn’t go to a health care provider when needed because they could not afford it.

Meanwhile, lawsuits are continually filed against hospitals, many of them religiously affiliated, for refusing to grant transition-related care, such as gender reassignment surgery, to transgender patients. Just last month, the American Civil Liberties Union sued University of Maryland St. Joseph Medical Center in Baltimore for cancelling a scheduled hysterectomy for a transgender patient as part of a transition plan.

Assistant Secretary of Health Brett Giroir addressed the council before the adoption of the resolution, expressing a commitment to continue the Trump administration plan to beat HIV/AIDS by 2030. He didn’t mention the anti-trans rule, nor was he asked about it.

“We are constantly looking for ways to expand the HIV message, all throughout my offices and throughout the agency,” Giroir said. “This is really, as we said, it’s not owned by one specific group, it’s got to be a whole of government, and really a whole of society approach.”

Giroir announced HHS will expand the program for free PrEP access to the underinsured with TrialCard, which will be responsible for current and new enrollees starting Nov. 1. Additionally, Giroir said HHS will launch online Aug. 17 the first national HIV epidemic analysis dashboard to keep track of progress toward reaching the goal of ending the epidemic.

The AIDS council during the meeting also unanimously approved two other resolutions. One calls for increased uptake in the “Ready, Set, PrEP” program, a Trump-era plan that provides free PrEP to the uninsured, as well as data collection on the location, race, ethnicity and LGBTQ status of the estimated 1,000 users. The other resolution seeks increased funds in the time of COVID for entities seeking to help with HIV, including Ryan White programs, state and local government and HIV testing.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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