The Trump administration today proposed to scrap an Obama-era policy that prohibited health care providers from discriminating against transgender patients, in its latest rollback of federal protections for transgender people.
The health department’s proposed rule, a rewrite of an Obamacare regulation that bars health care discrimination based on sex, would also strike down protections for LGBTQ patients.
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HHS said it is repealing the Obama-era definition of sex protections in order to make its regulations “more consistent” with other agencies. The proposal, released on a Friday before holiday weekend, comes two days after the Department of Housing and Urban Developmentmoved to let federally funded homeless centers deny services to transgender people.
The Obama administration had issued a rule asserting that Obamacare’s nondiscrimination protections, Section 1557 of the law, covered gender identity. But a federal judge blocked those protections in 2016 following a lawsuit from religious groups. The Trump administration said it rewrote the rule in response to the court ruling.
However, the Trump proposal eliminates similar nondiscrimination protections for LGBTQ patients that weren’t blocked by the court. The proposal also reaffirms the rights of health care workers to deny care based on a religious or moral objection, strengthening rules issued earlier this month by Trump’s health department.
“They’re adding explicit religious exemptions and completely eliminating prior protections for LGBTQ people,” said Katie Keith, a Georgetown University law professor.
The proposal was opposed by the American Medical Association and 30 other medical groups, which warned the Trump administration that its plan would put LGBTQ patients at risk. “To reduce the cost of health care and achieve our goal of creating a healthier nation, the specific needs of LGBTQ patients must be examined and effectively addressed,” the groups wrote in a letter to HHS Secretary Alex Azar.
Roger Severino, the director of the HHS civil rights office, defended the proposed rule rewriting Obamacare’s nondiscrimination provisions. He said it was not intended to put patients at risk.
“We believe in the inherent human dignity of all people,” Severino said on a call with reporters. “That goal is not changed by this rule.”
Severino also defended the decision to roll back LGBTQ patient protections in other regulations, telling POLITICO that it would “provide general overall consistency” on how the department treats sexual orientation.
Advocacy groups signaled they’d challenge the HHS rule in court, if finalized.
“The Trump-Pence Administration is sanctioning blatant discrimination in health care by attempting to reverse the landmark health care rights law,” said Fatima Goss Graves of the National Women’s Law Center. “We are prepared to protect and defend patients against this dangerous attempt to reverse their rights.”
Religious groups opposed the Obama administration’s decision to extend nondiscrimination protections to transgender patients, fearing it would require health care workers to provide services they may oppose on religious grounds, such as care related to gender transitions. However, LGBTQ patient advocates, who say they often face discrimination when seeking routine procedures or medication, warn the new Trump administration policies put them at greater risk of being denied care.
“This is not about free health care or special treatment,” said Mara Keisling of the National Center for Transgender Equality. “It’s about the right of every American to be treated with dignity when they walk into an emergency room, meet a new doctor, or find the right insurance plan.”
The HHS announcement comes shortly after the department finalized rules making it easier for health care workers to refuse to provide care that violates their religious or moral beliefs, a policy favored by anti-abortion groups and Christian conservatives closely allied with the Trump administration. Democratic attorneys general in New York, California and more than 20 other cities and states have filed lawsuits challenging the so-called conscience protections, which were developed by the civil rights office led by Severino.
Severino said the new nondiscrimination rules wouldn’t allow providers to deny services to transgender patients needing emergency medical attention. He said officials do not see a conflict with EMTALA, the federal law requiring hospitals to provide emergency care to all patients.
“I have not heard of such a hypothetical action happening in real life,” Severino said. “Certainly emergency rooms are covered by EMTALA. Nothing in this rule would preempt that federal law.”
Anticipating backlash, the administration is emphasizing that its overhaul of the nondiscrimination rules, which also mandate accommodations for people with disabilities and those who don’t speak English proficiently, will save the health care industry billions of dollars in time and paperwork by revising Obama-era requirements.
For instance, Severino said the health department was rolling back requirements that require organizations to mail many documents in 15 different languages and would cost the industry $3.2 billion over five years.
“The overwhelming majority of these mailing inserts are sent to English speakers,” Severino said.