Trump Administration Proposes Rollback of Transgender Protections


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WASHINGTON — 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’s 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 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 Trump’s Justice Department told Judge 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 L.G.B.T.Q. 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 L.G.B.T.Q. people at greater risk of being denied necessary and appropriate health care solely based on their sexual orientation or gender identity.”

Last year, Mr. 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 Mr. Severino said Friday that the agency would not seek to define sex.

Another case on the meaning of sex discrimination is before the Supreme Court this term. The court will consider whether similar language in Title VII bars discrimination against gay and transgender people in the workplace. The administration argues that it does not.

And a proposal this week from the Department of Housing and Urban Development would allow homeless shelters to require transgender clients to use bathrooms or sleeping accommodations that match their biological sex.

The health department’s proposed rule came two weeks after Mr. Severino announced a separate, expanded “conscience rule” to protect health care workers who oppose abortion, sterilization, assisted suicide and other medical procedures on religious or moral grounds. That rule established guidelines for punishing health care institutions with a loss of federal funds if they fail to respect the rights of such workers.

On Friday, Mr. Severino emphasized that the proposed revision of the civil rights rule, too, would protect health care providers and insurers from performing or paying for abortions.

Asked how the proposed rule would assure continued access to health care for transgender people, Mr. Severino said it did not mean providers would be “in any way restricted in how they provide their health care.”

“We have a lot of diversity in health care — a lot of options for people,” he said. “Nothing in the rule prevents any entity from providing a whole range of services to any individual according to their medical judgment, and that includes services related to gender identity.”

But advocates for transgender people warned that the rule would allow and even encourage providers who are biased against transgender people to deny them treatment. Taken with the recent rule protecting religious health care workers, they said, the administration’s policies shift the civil rights landscape away from patients who may be subject to discrimination and toward clinicians who have objections to treating them, or insurers who do not want to pay for their care.

“What this does from a very practical point of view is that it empowers bad actors to be bad actors,” said Mara Keisling, the executive director of the National Center for Transgender Equality.

She added that already, transgender people “are turned away from E.R.s, dismissed by insurers and mocked by untrained hospital staff, all while trying to seek the care every American deserves.”

Beyond affecting transgender people, the new rule could also open the door to discrimination in health care on the basis of sex stereotypes, said Omar Gonzalez-Pagan, a senior lawyer and health care strategist at Lambda Legal, a gay rights group. “That may mean whether somebody conforms to expectations about their sex as perceived by others with regard to behavior, clothing, with whom they associate romantically or how they present their identity,” he added. “That applies writ large to people who are L.G.B.T.Q., but also to straight people who are gender nonconforming in their presentation.”

Jocelyn Samuels, who ran the Office for Civil Rights under President Barack Obama, said the revised rule would “undermine Congress’s intent to expand access to health care and health coverage,” adding that it would “inflict extraordinary damage on vulnerable Americans.”

Under the federal rule-making process, the public will have 60 days to submit comments, concerns or suggestions on the proposed revision before it becomes final.

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