Critical Dharma for Thinking Minds
Trump Plan Would Cut Back Health Care Protections for Transgender People
By ROBERT PEAR
WASHINGTON — The Trump administration says it plans to roll back a rule issued by President Barack Obama that prevents doctors, hospitals and health insurance companies from discriminating against transgender people.
Advocates said the change could jeopardize the significant gains that transgender people have seen in access to medical care, including gender reassignment procedures — treatments for which many insurers denied coverage in the past.
The rule was adopted in 2016 to carry out a major civil rights law embedded in the Affordable Care Act. The law 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 said the rule covered “almost all practicing physicians in the United States” because they accept some form of federal remuneration or reimbursement. It applies, for example, to hospitals that accept Medicare and doctors who receive Medicaid payments, as well as to insurers that participate in health insurance marketplaces.
Trump administration officials said they believed they had to modify the rule because a federal judge in Texas had found that parts of it were unlawful.
“The Department of Health and Human Services has submitted a draft of a proposed rule” to the White House for clearance, the Justice Department told the judge this past week. And the White House confirmed that it was reviewing the proposed rule on “nondiscrimination in health programs.”
The Trump administration has been scaling back protections for transgender people on several fronts. Attorney General Jeff Sessions, reversing an Obama administration policy, said the main federal job discrimination law “does not encompass discrimination based on gender identity per se.”
Mr. Trump’s effort to bar transgender people from serving in the military is tied up in several federal courts. The Education Department has rescinded Obama administration guidelines on how schools should accommodate transgender students.
The existing health care rule adopted two years ago says that sex discrimination — clearly forbidden by the Affordable Care Act — includes discrimination based on “gender identity” and “stereotypical notions” about how men or women should present themselves or behave.
Under the existing rule, health insurers cannot place arbitrary limits or restrictions on health services that help a person transition from one gender to another. These services may include counseling, psychotherapy, hormone therapy and a variety of surgical treatments.
In the past, many insurers, as they denied coverage for such treatments, cited what they called the cosmetic or experimental nature of the procedures. The Obama administration said that view was “outdated and not based on current standards of care.”
But eight states, a network of Roman Catholic hospitals and the Christian Medical and Dental Associations, representing 19,000 doctors, challenged the Obama-era rule. A federal district judge in Texas temporarily stopped enforcement of the protections for transgender patients, saying that Congress had outlawed discrimination based on sex — “the biological differences between males and females” — but not transgender status.
“Congress did not understand ‘sex’ to include ‘gender identity, ’” said the judge, Reed O’Connor, in Fort Worth. In the Affordable Care Act, he said, Congress “adopted the binary definition of sex.”
But Jennifer C. Pizer, the law and policy director at Lambda Legal, a gay rights group, said, “That is an excruciatingly narrow and legally incorrect definition of the term ‘sex’ that would jeopardize legal protections for lesbian, gay, bisexual and transgender people.”
Doctors, hospitals and states in the Texas case also objected to a provision of the federal rule that they said put pressure on them to provide or pay for abortion-related services. The judge blocked this provision too.
Roger Severino, the director of the Office for Civil Rights at the Department of Health and Human Services, said it was necessary 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,” Mr. Severino said in an interview. “The court order is binding on H.H.S., and we are abiding by it.”
Jocelyn Samuels, who was the director of the civil rights office under Mr. Obama and an architect of the rule, said, “If the Trump administration rescinds the protections against sex stereotyping and gender identity discrimination, the effect will be potentially devastating not just for the trans community, but for any other patients who are gender-nonconforming, including lesbian and gay individuals.”
Trump administration officials told the federal court in Texas that they intended to modify the Obama-era rule, but did not say exactly how.
In recent years, some courts have held that federal sex discrimination laws do apply to discrimination against transgender people, as the Obama administration said.
Judge Susan Richard Nelson of the Federal District Court in Minnesota has found that the Affordable Care Act protects people who “allege discrimination based on ‘gender identity’” — a person’s internal sense of gender, which may differ from the sex listed on the person’s birth certificate.
Barry Ted Moskowitz, the chief judge of the Federal District Court in San Diego, has ruled that “discrimination on the basis of transgender identity is discrimination on the basis of sex,” prohibited by the Affordable Care Act.
The rule being drafted by the Trump administration puts federal officials at odds with many medical experts. Dr. James L. Madara, the chief executive of the American Medical Association, urged the administration to preserve the existing protections for transgender people.
The A.M.A. “stands behind” those protections and “opposes any modifications to the rule that would jeopardize the health and well-being of vulnerable populations,” he said in a letter to Mr. Severino.
Harper Jean Tobin, the policy director at the National Center for Transgender Equality, an advocacy group, said that the 2010 law and the Obama administration rule had significantly increased access to health care and coverage for transgender people. But in surveys, she said, transgender patients still report “mistreatment, refusals of care and harassment in medical settings.”
Judge O’Connor said the rule probably violated the Religious Freedom Restoration Act because it did not include an exemption for health care providers who had religious objections to providing gender transitions or abortions.
Trump administration officials share that concern. The administration has been zealous in trying to protect health care workers who object to performing procedures like abortion and gender reassignment surgery because of their religious beliefs or moral convictions.