Trump Administration Proposes Rollback of Transgender Protections

Written by Abby Goodnough, Erica L. Green and Margot Sanger-Katz

The Trump administration formally proposed on Friday to roll back Obama-era civil rights safeguards that had banned discrimination against transgender medical patients and health insurance customers.

The Department of Health and Human Services’ proposed regulation would replace a 2016 rule from the Obama administration that defined discrimination “on the basis of sex” to include gender identity. The Trump administration rule would no longer recognize gender identity as an avenue for sex discrimination.

Without the Obama-era language, health care workers would be free to object to performing procedures like gender reassignment surgery, and insurers would not be bound to cover all services for transgender customers. The new rule would fit into a broader agenda pushed by religious activists and is consistent with administration actions to limit civil rights protections for gay and transgender Americans in a variety of domains, including education, employment and housing.

The Obama administration adopted the health care discrimination rule to carry out a civil rights provision of the Affordable Care Act. It prohibits discrimination based on race, color, national origin, sex, age or disability in “any health program or activity” that receives federal financial assistance. The Obama administration included “gender identity” as an aspect of sex, and specified that the term means a person’s “internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.” The Obama-era definition of discrimination also protected women who had terminated a pregnancy.

Under the provision, health care services for transgender patients and patients with a history of abortion had to be offered by hospitals and covered by patients’ health plans.

But a group of states and religious medical providers sued, and in December 2016, a federal judge in Fort Worth, Texas, blocked that section of the rule on a temporary basis, writing that “Congress did not understand ‘sex’ to include ‘gender identity.’” The judge, Reed O’Connor, has yet to issue a final ruling, and a nationwide preliminary injunction remains in place. Cases challenging the rule on similar grounds are pending in North Dakota.

President Donald Trump’s Justice Department told O’Connor in court filings this year that it agreed with him.

“What we’re doing today conforms with the court injunction as well as the position of the Department of Justice, but most importantly conforms with the text of the law itself,” Roger Severino, the director of the Office for Civil Rights at the Department of Health and Human Services, said Friday in a call with reporters. “That’s all we are doing here, is making sure we’re being fully consistent with the law the people’s representatives passed and being faithful to it.”

But three other courts have found that the provision in the health law does protect transgender patients against discrimination by health care providers.

Transgender rights groups contended that the preliminary injunction in Texas could have been contested once a final ruling was made, and possibly overturned. But the new rule is in keeping with a broader agenda, they said.

“The Trump-Pence administration’s latest attack threatens to undermine crucial nondiscrimination protections for LGBTQ people provided for under the Affordable Care Act,” David Stacy, the government affairs director for the Human Rights Campaign, said in a statement. “The administration puts LGBTQ people at greater risk of being denied necessary and appropriate health care solely based on their sexual orientation or gender identity.”

Last year, Severino pushed for a legal definition of sex under Title IX, the federal civil rights law that bans gender discrimination in education programs that receive government financial assistance.

“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the health department proposed in the memo, which was obtained by The New York Times. “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

But Severino said Friday that the agency would not seek to define sex.