HHS moves to roll back Obama-era transgender health policy

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The Trump administration proposed revoking Obama-era discrimination protections for transgender people in health care on Friday, a move LGBT groups fear will result in some Americans being denied needed medical treatment.

The Health and Human Services Department released a proposed regulation that in effect says "gender identity" is not protected under federal laws that prohibit sex discrimination in health care.

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It fits into a backdrop of administration actions to limit or move back some of the new recognition for LGBT people in areas ranging from military service to housing.

"The actions today are part and parcel of this administration's efforts to erase LGBTQ people from federal regulations and to undermine nondiscrimination protections across the board," said Omar Gonzalez-Pagan, a senior attorney on health care at Lambda Legal, a civil rights organization representing LGBT people.

But the HHS official overseeing the writing of the new regulation said transgender patients would continue to be protected by other federal laws that bar discrimination on the basis of race, color, national origin, sex, age and disability.

"Everyone deserves to be treated with dignity and respect," said Roger Severino, who heads the HHS Office for Civil Rights. "We intend to fully enforce federal laws that prohibit discrimination."

Asked about the charge that the administration has opened the door to discrimination against transgender people seeking needed medical care of any type, Severino responded, "I don't want to see that happen."

The Trump administration's proposed rule reverses the Obama administration, which concluded that the Affordable Care Act's anti-discrimination section does indeed protect transgender people seeking health care services.

Friday's action had been expected by activists on both sides of the nation's social issues divide. Trump's religious conservative base has argued that the Obama administration stretched the meaning of "sex discrimination" when it included gender identity as a protected class. Civil rights and LGBT groups say that view is logically and legally flawed.

The proposed rule change is unlikely to have immediate consequences beyond the realm of political and legal debate. It faces a 60-comment period and another layer of review before it can be finalized. Court challenges are expected.

"Despite the goals of this White House ... courts have been clear for decades that prohibitions on sex discrimination encompass discrimination against transgender individuals," said Louise Melling, deputy legal director with the American Civil Liberties Union. Her organization, she added, will challenge the proposal in court.

Melling said the potential impact of the proposed rule goes beyond transgender people and could also subject women to discrimination for seeking or having had an abortion. The proposal would remove "termination of pregnancy" as grounds for making a legal claim of sex discrimination in health care.

Abortion opponents had argued that the Obama regulation could be construed to make a legal argument for federal funding of abortions.

In a twist, the rule would also affect the notices that millions of patients get in multiple languages about their rights to translation services. Such notices often come with insurer "explanation of benefits" forms. The Trump administration says the notice requirement has become a needless burden on health care providers, requiring billions of paper notices to be mailed annually at an estimated five-year cost of $3.2 billion.

HHS official Severino said that the Trump administration is going back to the literal text of the ACA's anti-discrimination law to correct what it sees as an overly broad interpretation.

The Obama rule dates to a time when LGBT people gained political and social recognition. But a federal judge in Texas said the rule went too far by concluding that discrimination on the basis of gender identity is a form of sex discrimination, which is forbidden by civil rights laws.

Under the original rule, a hospital could be required to perform gender-transition procedures such as hysterectomies if the facility provided that kind of treatment for other medical conditions. The rule was meant to carry out the anti-discrimination section of the ACA, which bars sex discrimination in health care but does not use the term "gender identity."

In the Texas case, a Catholic hospital system, several states and a Christian medical association argued that the rule went beyond the law as written and would coerce providers to act against their medical judgment and religious beliefs.

Severino also said that the proposed rule does not come with a new definition of a person's sex. Earlier, a leaked internal document suggested the administration was debating whether to issue an immutable definition of sex, as based on a person's genital organs at birth.