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Trump Proposes Rescinding Protections for Transgender Individuals in Health Care

Published Online:https://doi.org/10.1176/appi.pn.2019.6b44

Abstract

APA and its coalition of more than 600,000 physicians are urging the Trump administration to work with them to retain protections for transgender individuals and women to ensure all patients have access to the quality care they need.

APA and five medical specialty coalition members are urging the Trump administration to drop its proposal to rescind antidiscrimination protections in health care programs for transgender individuals and restrict women’s access to reproductive health care, warning that the changes could endanger patient care, cause great harm, and lead to higher costs.

“We oppose any laws and regulations that discriminate against transgender and gender-diverse individuals,” said the coalition, which represents 600,000 physicians and medical students. “We oppose any medically unnecessary restrictions placed on women’s access to reproductive health care. Instead we urge the administration to eliminate this policy change and work with us to ensure patients have access to the quality care they need.”

In addition to APA, the physician coalition includes the American Academy of Family Physicians, American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American College of Physicians, and American Osteopathic Association.

Trump Takes Aim at Transgender Rights

The Trump administration’s decision to rescind antidiscrimination protections for transgender individuals in health care is widely viewed as its latest salvo against transgender Americans.

The administration floated the idea of narrowly defining “gender” as a biological, immutable condition determined by genitalia at birth, conforming only to what is coded on an individual’s birth certificate. Rather than pursue this approach, the administration appears to be dismantling civil rights for transgender individuals one by one.

Last month the Department of Housing and Urban Development proposed a rule that would weaken Obama-era protections for homeless transgender people, allowing federally funded shelters to deny people admission on religious grounds. It also gave shelters the green light to force transgender women to share bathrooms and sleeping quarters with men.

According to research by the National Center for Transgender Equality, 1 in 3 transgender people has experienced homelessness. Seventy percent of transgender individuals who went to a shelter last year were kicked out for being transgender or were physically or sexually assaulted because of their gender identity, the center reported.

The administration also created a division within the HHS Office of Civil Rights to protect health workers who have moral or religious objections to performing certain procedures, including abortions or sex-reassignment surgery.

In April, a Defense Department directive took effect, sharply curtailing eligibility for military service among the transgender community and reversing a policy created under the Obama administration. The move disqualified most people with a history of gender dysphoria unless they meet numerous strict criteria.

The Trump administration also scrapped a proposal to collect demographic information on LGBT individuals in the 2020 Census. In addition, the Department of Justice dropped a lawsuit that challenged a North Carolina law that restricted transgender people’s use of bathrooms.

On a positive note, however, the U.S. Supreme Court declined to hear a case allowing school districts to continue permitting transgender students to use bathrooms and locker rooms appropriate for their gender identity while providing alternative facilities for those who say they are disturbed by this practice. If the Supreme Court had reviewed the Pennsylvania case, Doe v. Boyertown School District, it would have been the first time the court would have heard a case directly addressing the rights of transgender individuals.

At issue is Section 1557 of the Affordable Care Act (ACA), which bans discrimination in all health care programs that are federally assisted or administered, including the individual health insurance exchanges created by the ACA. However, last month the Department of Health and Human Services (HHS) issued a proposal that would redefine antidiscrimination within health care programs “on the basis of sex” to no longer include the categories of sex stereotyping, gender identity, or pregnancy termination.

The rule would also broadly increase the authority of health care professionals to refuse service based on religious grounds. The rule is widely seen as the administration’s latest salvo against transgender individuals (see box) and women who are seeking abortion.

Previously Congress directed HHS to apply civil rights laws and regulations to any federally assisted or administered health care program to prohibit discrimination on the basis of race, color, national origin, disability, age, and sex.

In May 2016, the Obama administration issued a final rule that defined discrimination “on the basis of sex” to include sex stereotyping, termination of pregnancy, and “gender identity,” which it defined as one’s internal sense of being “male, female, neither, or a combination of male and female.”

Several states and Catholic health care organizations filed lawsuits against HHS over the regulations, and in December 2016 a federal court issued a nationwide preliminary injunction, barring HHS from enforcing the rule’s provisions that granted protections against discrimination in health care based on gender identity or pregnancy termination.

APA and its physician partners said that rolling back gender discrimination protections would sanction discrimination against already vulnerable patient populations. “Transgender patients often cite stigma and discrimination as the primary barriers in accessing treatment, which leads to higher health costs and poorer outcomes,” the coalition said. “In addition, permitting health care entities that receive federal funding to refuse care to patients who have had a pregnancy termination will have a dangerous effect on access to care. Allowing religious exemptions, as the rule proposes, will discriminate against women seeking necessary reproductive health care services.”

The Trump administration rule would apply to health insurance plans offered under the exchanges created by the ACA. HHS also proposed to similarly amend 10 other regulations issued by the Centers for Medicare and Medicaid Services to make the antidiscrimination provisions consistent.

The policy change could have far-reaching implications. Recent research from the Williams Institute estimated there are more than 13 million LGBTQ individuals over age 13 in the United States, and of those, nearly 7 million live in states that lack legal protection based on sexual orientation and gender identity in public accommodations, such as health care facilities.

Kris Hayashi, executive director of the Transgender Law Center, called the proposed rule another outright attack from the Trump administration on the estimated 2 million transgender individuals in the United States. “This rule dangerously encouraged illegal discrimination, putting the lives of transgender people in jeopardy—particularly for trans people living with HIV, black transgender people, people of color, trans people with disabilities, and rural and Southern trans folks.”

At press time, the proposed rule had not yet been published in the Federal Register. Once it is published, the public has 60 days to file comments. ■

The proposed rule “Nondiscrimination in Health and Health Education Programs or Activities” can be accessed here, and the fact sheet is posted here. The physician coalition’s press release is available here.