Trump and Pence are targeting trans health care. A massive new ‘religious exemption’ enables hospitals, insurance companies, doctors, pharmacists, and others to deny service to trans and gay people and their families.
The Trump-Pence administration took another step toward creating two separate and unequal health-care systems in America: one for straight people protected by law, and another in which transgender people, women, and gays can be refused service, discriminated against, and thrown out on the street, even if their lives are in danger. This is cruel and dangerous.
The rule is the latest Trump administration proposal to strip protections for transgender Americans, coming the same week another directive was proposed by the Department of Housing and Urban Development that would allow homeless shelters to turn away people based on their gender identity.
The proposed new rule undoes an Obama-era policy that protected discrimination against gay and transgender people as part of the Affordable Care Act’s provisions against sex discrimination. Obama’s health officials said it is discrimination to treat someone differently based on gender identity or stereotypes. That policy was the first time Americans who are transgender were protected from discrimination in health care.
But, under the proposed rule, a massive new ‘religious exemption’ would make it perfectly legal for a doctor, hospital, insurance plan, or pharmacist to refuse to cover transgender people, to provide coverage for gender-confirmation hormones or surgery, to fill prescriptions, or to treat trans people in emergency rooms.
It would also be legal to discriminate against gays, lesbians, and bisexuals, because the same provision of the ACA, Section 1557 had been understood as prohibiting “sex stereotyping,” or discriminating against gays and lesbians. Already, there have been numerous cases of doctors refusing to treat the children of same-sex parents and pharmacists refusing to fill prescriptions for HIV medication once they learned the recipient was gay.
Transgender people already faced a dreadful medical system that, outside of a few enclaves, is several decades behind the scientific understanding of gender identity, with as much as seventy percent of transgender people say that they have experienced some form of a discrimination in a health care setting.
A 2018 survey conducted by the Center for American Progress showed that 29 percent of trans respondents said that a doctor or other health care provider refused to see them because of their actual or perceived gender identity, 21 percent said the doctor “used harsh or abusive language” when treating them, and 29 percent said they experienced unwanted physical contact “such as fondling, sexual assault, or rape.”
Meanwhile, a 2017 NPR poll found that 31 percent of trans Americans lack regular access to health care, with 22 percent saying that they avoided doctors out of fear of being discriminated against.
Research shows the LGBTQ community faces greater health challenges and higher rates of illness than other groups, making access to equitable treatment in health care all the more important.
Discrimination, from the misuse of pronouns to denials of care, is “commonplace” for transgender patients, according to a 2011 report by advocacy groups. The report found that 28% of the 6,450 transgender and gender non-conforming people interviewed said they had experienced verbal harassment in a health care setting, while 19% said they had been refused care due to their gender identity.
Critics of the proposed rule fear it would muddy the waters and give patients less clarity on what is and is not permissible and how to get help when they have been the victims of discrimination.
Persons living at or below the poverty line, people of color, and especially trans women of color, are disproportionately affected. Moreover, because transgender (especially trans-feminine) populations experience disproportionate employment discrimination (which is legal in 28 states), they’re more likely to struggle economically, even before considering the high expense of gender dysphoria treatment.
The Trump administration is making it easier for hospitals, insurance plans, doctors, and pharmacists to turn them away. “No person should be deprived from receiving life-saving treatment simply for being who they are,” said Andy Marra, executive director of the Transgender Legal Defense and Education Fund, in a statement. “Yet today’s proposed rule invites health care professionals, hospitals, and insurance companies to selectively determine who is deserving of medically necessary care. There is nothing conscionable or humane about placing transgender people in harm’s way when we already face immense barriers.”
On June 14, the Department of Health and Human Services (HHS) published a proposed regulation based on a court’s outrageous claim that the ACA’s protection against discrimination on the basis of gender identity is “likely unlawful.” This initiated a 60-day public comment period that runs through Aug. 12. In a press release sent out by HHS, Roger Severino, the Director of the department’s Office of Civil Rights, offered this rationale: “When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform.”
This is a bad faith and incorrect view of “sex discrimination,” but it’s unsurprising coming from Mr. Severino. His long history of attacking the civil rights of LGBTQ people and women includes calling same-sex marriage part of a “radical” agenda, defending the abusive practice of so-called “conversion therapy, and espousing anti-choice opinions, even at the expense of an individual’s health care. He has said that being LGBTQ is “against your biology” and stated that sexual orientation, when compared to race, is an issue of “character.”
This is not a person who prioritizes the health and safety of all Americans but, rather, consistently seeks to push his personal beliefs on the citizens who look to him for quality and safety in their health care system.
Severino has been candid about his intentions to overturn an Obama-era rule that prohibited discrimination based on gender identity and termination of a pregnancy. In 2016, while at the conservative Heritage Foundation, he co-authored a paper arguing the restrictions threaten the independence of physicians to follow their religious or moral beliefs.
Much of what the Office for Civil Rights has done under Severino’s leadership is to emphasize and strengthen so-called conscience protections for health care providers, many of which existed well before Trump was sworn in. Last year, Severino unveiled a Conscience and Religious Freedom Division, and his office recently finalized another rule detailing those protections and their enforcement.
The office also said the proposed rule would save about $3.6 billion over five years. Most of that would come from eliminating requirements for providers to post notices about discrimination, as well as other measures that cater to those with disabilities and limited English proficiency.
The rule would also save providers money that might instead be spent handling grievances from those no longer protected.
The office “considers this a benefit of the rule,” said Katie Keith, co-founder of Out2Enroll, an organization that helps the LGBTQ community obtain health insurance. “Organizations will have lower labor costs and lower litigation costs because they will no longer have to process grievances or defend against lawsuits brought by transgender people.”
The sweeping proposal has implications for all Americans, though, because the Department of Health and Human Services seeks to change how far civil rights protections extend and how those protections are enforced. This proposed regulation callously puts lives at risk, and it’s imperative the American people make their voices heard on why this it is dangerous and unacceptable.
Jocelyn Samuels, the Obama administration official who oversaw the implementation of the Obama-era rule, said that for now, even though the Trump administration’s HHS will not pursue complaints against those providers, Americans still have the right to challenge this treatment in court. Multiple courts have said the prohibition on sex discrimination includes gender identity.
“The administration should be in the business of expanding access to health care and health coverage,” Samuels told reporters on a conference call after the rule’s release. “And my fear is that this rule does just the opposite.”