The Trump administration’s Department of Health and Human Services (HHS) on May 24 moved forward with an anticipated proposal to gut Obamacare rules protecting people on the basis of gender identity in healthcare settings.
The proposed rule — recently previewed by Gay City News — targets a 2016 provision of the Affordable Care Act that included gender identity under the definition of sex discrimination.
The administration foreshadowed the proposal in a court filing late last month when it stated it was expecting “to be able to publish a proposed rule, which, if finalized, may moot” a case challenging the protections under Section 1557 of the Affordable Care Act, which bans discrimination on the basis of race, color, national origin, sex, age, and disability in “any health program or activity” funded with federal dollars or part of the ACA health marketplace.
That case, which is ongoing, was mounted by Franciscan Health (formerly known as Franciscan Alliance), a healthcare system of 14 hospitals in Indiana and Illinois which states on its website that it is “continuing Christ’s mission in our Franciscan tradition.”
The rule Trump is trying to replace states that health services offered by hospitals must be provided on an equal basis to trans people as well as women who have had an abortion and must be covered by health insurance plans. The proposal paves the way for medical professionals to refuse to carry out procedures that are part of gender reassignment surgery and to provide other health care services for trans people.
HHS did not immediately return requests for comment regarding the rule on May 28.
The move marks the second time this month the administration has issued a proposal aimed towards curtailing the rights of transgender and gender nonconforming people in healthcare settings. A separate proposed rule on May 2 gives health care workers and institutions the ability to cite “moral” or “religious” reasons to refuse care for patients.
LGBTQ groups and health-based organizations reacted with disgust after the administration’s latest proposal. David Stacey, the government affairs director at the Human Rights Campaign, said in a written statement that Trump is undermining “crucial” nondiscrimination protections.
“The administration puts LGBTQ people at greater risk of being denied necessary and appropriate health care solely based on their sexual orientation or gender identity,” Stacy said. “Everyone deserves access to medically necessary care and should never be turned away because of who they are or who they love.”
Doug Wirth, president and CEO of the non-profit health plan Amida Care, which specializes in providing care for low-income New Yorkers including those living with or affected by HIV, said the rule would disproportionately affect transgender people.
“This latest development means that our transgender neighbors will face even steeper barriers to care, and is in direct opposition to the Trump administration’s stated goal of Ending the Epidemic by 2030,” Wirth said in a written statement.
The recent proposals follow the administration’s numerous other recent attacks on the LGBTQ community, including a ban on transgender service members in the military, a separate proposal to require homeless transgender people to stay in shelters consistent with their biological sex rather than gender identity, and a State Department policy of denying American citizenship to some children, born overseas, of bi-national same-sex parents.
HHS also made waves earlier this year when the agency granted foster care agencies in South Carolina an exemption from government regulations banning discrimination on the basis of sexual orientation and gender identity.
Since Trump took office, the administration also rescinded an Obama-era guidance regarding the rights of transgender students, sided with the anti-LGBTQ Masterpiece Cakeshop baker in court cases, and sought to cut off key funding sources for HIV research despite having pitched a so-called plan to stop the HIV/ AIDS epidemic.
In a telling statement on page 116 of a 204-page document, the administration signaled that it welcomes anti-LGBTQ policies implemented by local governments across the nation, stating that “local entities are better equipped to address issues of gender dysphoria or sexual orientation and the sometimes competing privacy interests with sensitivity, especially when young children or intimate settings are involved.”
Trump’s latest proposal will now undergo a customary 60-day commenting period to give the general public an opportunity to respond before it goes into effect.
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