Trump administration officials are working on a new rule that civil rights organizations fear could essentially blow up the nondiscrimination protections of the Affordable Care Act for LGBTQ individuals and make it easier for hospitals, physicians or insurers to deny care or coverage to transgender people for religious reasons.
The debate centers on the word “sex” as it applies to those provisions. Some faith-based health-care organizations protested in 2016 when President Barack Obama’s Health and Human Services Department interpreted the term to include gender identity and transgender people as protected classes.
They worried they could be forced to provide surgery, medications or other care to help transgender people transition to the opposite sex — and several groups filed suit, arguing it violated their religious freedoms.
This month, as part of an 18-page filing in a Texas lawsuit, Trump administration officials at HHS said that they agree the Obama-era rule is illegal and they are rewriting it.
“The United States has returned to its long-standing position that the term 'sex’ . . . does not refer to gender identity,” HHS attorneys wrote.
The issue of whether federal nondiscrimination laws apply to sexual orientation and gender identity is one of the most consequential, unsettled civil rights questions of our era. The Supreme Court on Monday jumped into the debate, announcing it had accepted three cases involving gay and transgender employees and related to anti-discrimination laws in employment.
The potential new HHS rule is part of a broader effort by social conservatives in the Trump administration to change the language around LGBTQ people in official documents, regulations and the law to represent more traditional views on relationships and rights. This includes adding references to “marriage between man and woman” and removing terms such as gender rights.
HHS officials declined to comment for this report. But earlier this month, they published a proposed rule that would remove collection of data on the sexual orientation of foster youth and parents and guardians in its Adoption and Foster Care Analysis and Reporting System. LGBTQ rights groups have argued that asking for that information, which is voluntary, is critical to ensuring the well-being of children.
Research funded by HHS has shown that roughly 20 percent of youth in foster care identify as LGBTQ and are more likely to report poor treatment and suffer worse outcomes. Julie Kruse, director of federal policy at the Family Equality Council, said in a statement that government agencies “cannot improve care and outcomes for youth if they do not have data to measure their efforts."
HHS, in a draft rule related to foster and adoptive care published April 19 in the Federal Register, argued that a third of states surveyed recommended that such information be removed because of its self-reported nature, which might make it unreliable, and its sensitive nature. “[T]hey questioned the implications of having this information in a government record,” HHS wrote.
HHS has not officially announced its work on the Affordable Care Act nondiscrimination rule, but signaled its efforts as part of a lawsuit involving the Franciscan Alliance, a hospital company, and the Christian Medical and Dental Associations in the Texas case. A judge in 2016 issued a temporary injunction that prevented the groups from having to provide care that violates their beliefs, and the case has been in progress since.
Luke Goodrich, lead attorney for the plaintiffs, said the organizations provide care to a diverse group of patients — including transgender individuals — and have done so for decades. However, they have studied the medical evidence and believe transition-related care such as a hysterectomy or hormone therapy “involve a significant amount of medical risks and side effects.”
“They believe those procedures could be deeply harmful and as a matter of religious beliefs, they don’t want to be involved,” said Goodrich, senior counsel with the Becket Fund for Religious Liberty.
The American Civil Liberties Union and other rights groups have said the change may create a situation where physicians and other care providers could provide substandard care to LGBTQ individuals — or abstain from treating them in the first place — under the cover of religious freedom.
Gillian Branstetter, a spokeswoman for the National Center for Transgender Equality, said explicitly prohibiting discrimination is critically important because the transgender experience with the U.S. health-care system is often negative and such individuals have unique needs.
A study published this month in JAMA Internal Medicine, for example, found that transgender adults were 30 percent more likely to describe themselves as being in “fair” or “poor” health and 66 percent more likely to report severe mental distress. Previous surveys have shown that 1 in 3 transgender people had issues with insurance companies and 1 in 4 with a medical provider.
“It really is going to worsen a situation that is already bad for a lot of people,” Branstetter said. “It’s going to send a mixed signal to providers about where transgender people stand as patients.”