Trump Administration Reverses Transgender Health Care Protections

People gather in Lafayette Park on June 26, 2015, to see the White House illuminated with rainbow colors in commemoration of the Supreme Court’s ruling to legalize same-sex marriage. (AP Photo/Pablo Martinez Monsivais, File)

WASHINGTON (CN) — Drawing immediate threats of lawsuits from advocacy groups, the Trump administration finalized its rollback Friday of an Obama-era regulation that covered gender identity under antidiscrimination protections in health care.

In a final rule announced on Friday afternoon, the administration said it will do away with a 2016 regulation issued as part of the Patient Protection and Affordable Care Act that included gender identity in protections against discrimination on the basis of sex.

The Obama regulation defined gender identity to include “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.” In a press release announcing the new rule, the Department of Health and Human Services said it will interpret the word “sex” as “male or female and as determined by biology.”

The 2016 regulation was issued as part of section 1557 of the Affordable Care Act, commonly called Obamacare, which applied a host of existing civil rights laws to health care facilities that receive federal funding. In addition to prohibiting discrimination against transgender patients, the regulation also included protections against discrimination on the basis of sex stereotyping and abortion. 

A federal judge in Texas blocked the regulation in December 2016 and in October 2019 found the rules violated federal law.

Advocates have raised alarms about the looming rollback since it was put forward in May 2019, warning it would cause more transgender people to be denied health care and lead to more discrimination against members of the LGBTQ community.

The new regulation, finalized on Friday, rolls back the 2016 regulation’s inclusion of gender identity and abortion under the prohibition of discrimination on the basis of sex, arguing the definition went “beyond the plain meaning of the law.”

In announcing the finalization of the rollback on Friday, HHS said the changes will bring the regulation back in line with current legal precedents while still allowing the agency to enforce the civil rights protections that remain standing.

“HHS respects the dignity of every human being and as we have shown in our response to the pandemic, we vigorously protect and enforce the civil rights of all to the fullest extent permitted by our laws as passed by Congress,” Roger Severino, the director of the Department of Health and Human Services’ Civil Rights Office, said in a statement. “We are unwavering in our commitment to enforcing civil rights in health care.”

In addition to rolling back the 2016 protections, the new regulation also makes clear other laws that provide for protections for sincerely held religious beliefs apply to the health care antidiscrimination rules.

The regulation is all but certain to face swift legal challenge, with LGBTQ rights groups Lambda Legal and the Human Rights Campaign already promising to bring lawsuits. 

“LGBTQ people should not live in fear that they cannot get the care they need simply because of who they are,” Human Rights Campaign President Alphonso David said in a statement. “It is clear that this administration does not believe that LGBTQ people, or other marginalized communities, deserve equality under the law. But we have a reality check for them: we will not let this attack on our basic rights to be free from discrimination in health care go unchallenged.”

Omar Gonzalez-Pagan, a senior attorney and health care strategist at Lambda Legal, called the new regulation “flat out illegal” in a statement that also promised a legal challenge.

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