A draft rule released Friday would undo nondiscrimination protections in health care for those who have had abortions as well as transgender people.
The Donald Trump administration on Friday unveiled its long-expected proposal to reverse health care protections for transgender people and those who’ve had abortions, issuing a draft rule that seeks to rescind nondiscrimination policies established under the Affordable Care Act.
It’s the Trump administration’s third regulatory strike against transgender people this week. One rule, finalized Tuesday, would let health care workers recuse themselves from treating transgender patients on religious grounds, and a draft rule issued Wednesday would let homeless shelters turn away transgender people.
The 204-page proposal released Friday by the Department of Health and Human Services would change the way discrimination “on the basis of sex” is defined. Instead of stating that this includes transgender patients or abortion-related care, the term “sex” would be open to interpretation — thus removing those explicit protections.
HHS says this change is necessary as a response to lawsuits from conservatives who argued that the word was being interpreted too broadly.
“This proposed rule,” the draft says, “seeks to amend regulations that identify sexual orientation or gender identity as prohibited bases for discrimination for certain Department funded or administered programs.”
The new regulation would add, “Nothing in this chapter shall be construed to require or prohibit any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion.”
The move is part of a broader effort under President Donald Trump’s administration to undo LGBT and reproductive rights, many of which were created by his predecessor, former president Barack Obama, by asserting that civil rights laws banning “sex” discrimination should be interpreted narrowly.
“This rule dangerously encourages illegal discrimination, putting the lives of transgender people in jeopardy,” Kris Hayashi, executive director at Transgender Law Center, said in a statement calling the draft rule “yet another outright attack from the Trump administration on the health, well-being, and survival of transgender people.”
The HHS policy would reverse part of a 2016 regulation that says discrimination in medical care or insurance coverage due to gender identity or “termination of pregnancy” is illegal. A federal judge had blocked the Obama-era regulation the same year, and shortly after Trump took office, the administration announced plans to rewrite it.
As part of its latest moves, the HHS said Friday that it plans to amend 10 other regulations, issued by the Centers for Medicare & Medicaid Services, concerning discrimination on the basis of sex in order to make them consistent with the new draft rule.
Mara Keisling, executive director of the National Center for Transgender Equality, said the proposal “will abandon 2 million Americans” who were protected under the previous rule.
When Congress passed the Affordable Care Act in 2010, lawmakers included Section 1557 to establish nondiscrimination protections in health care services and insurance by referring to Title IX of the Education Amendments of 1972 and other civil rights laws — but it left the specifics up to future rule-making.
The HHS under then-president Obama fleshed out those details in a 2016 regulation asserting that Title IX’s ban on sex discrimination included discrimination on the basis of gender identity and termination of pregnancy.
The rule essentially prevented medical workers, insurers, or organizations from discriminating against transgender patients for any services — including transition-related care — and women who have had or are seeking abortions in some circumstances.
Pertaining to abortion care, the effects of the rule were slightly more complicated. Because of regulations in place preventing government funding of abortions, the nondiscrimination clause applied only when a health insurer or organization provided the same types of procedures for both abortions and nonabortion services. For example, a procedure called “dilation and evacuation” is used both in miscarriage care and abortion care. If a Catholic hospital provided this service for miscarriages, under the Obama administration’s rule, it would also have to provide it for abortions.
The rule affected the vast majority of health care workers because it applied to any hospitals, doctors, or clinics that accept federal reimbursement or remunerations, like Medicare or Medicaid payments. It also affected insurance companies that participate in the health insurance market.
But the rule was blocked after a group of states, joined by several organizations, sued the Obama administration in a remote Texas district with only one presiding judge, a George W. Bush appointee known for blocking the administration’s liberal policies. After Trump took office, HHS indicated that it would reverse the regulation in order to make the lawsuit moot.
The dispute is at the heart of a much larger national debate over what “sex” means: sex as identified by birth, gender identity, or other factors.
Many conservatives have insisted that if lawmakers intended for sex discrimination laws to address transgender people, they would have written such language explicitly into the bills, as they did in the Violence Against Women Act.
“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” Roger Severino, director of HHS’s Office for Civil Rights, said in a statement Friday.
HHS says in a fact sheet that the latest rule is “returning to the government’s longstanding interpretation of ‘sex’ under the ordinary meaning of the word Congress used.”
Yet courts have found the term “sex,” while arguably ordinary or plain, is actually ambiguous.
Laws concerning “sex” don’t necessarily need to name transgender people in order to protect them. Many courts have found that a law’s text, not its intent, must be the deciding factor. Several judges have concluded that transgender people are covered by the plain meaning of “sex” in laws against discrimination because they wouldn’t face discrimination “but for” their sex. For instance, they endured bias because their gender identities differed from their sex at birth, or they didn’t conform to gender stereotypes for someone of their birth sex.
Given that no federal law specifically bans anti-LGBT discrimination, advocates have pushed in courts and through regulations to argue that sex discrimination bans cover sexual orientation and gender identity. The Supreme Court has never ruled definitively on the issue.
The Trump administration, however, narrowed its definition of “biological sex” in March when the Department of Defense released a policy banning most transgender people from the military. The policy defined “biological sex” as a “person’s biological status as male or based on chromosomes, gonads, hormones, and genitals.”
The administration had previously reversed certain policies from the Obama administration that said transgender people are covered by sex discrimination laws, such as in guidance for students and workers, but it had never formally asserted that sex — as a generic term — can be defined only by biological characteristics or sex at birth.
The proposal also fits in with a wider undertaking by Trump’s HHS to increase religious protections for health care workers. In early 2018, the Trump administration opened an office within HHS’s Office for Civil Rights (the same office that implemented Section 1557) to protect health workers who had moral or religious objections to performing certain procedures, including things like abortions or sex reassignment surgery.
Although the new regulation reflects the administration’s opinion about the scope of antidiscrimination law, specifically Title IX, it does not prevent a victim from suing in court — indeed, transgender plaintiffs have prevailed in numerous recent sex discrimination lawsuits involving education and workplaces.
Abortion and LGBT rights advocates have told BuzzFeed News that they will almost certainly take legal action to block the proposed rule, depending on what the final version looks like after the comment period has ended.
Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center, told BuzzFeed News that the Obama-era regulation was “the first time we had this broad of a civil rights law for health care. Whatever the final rule looks like, we would consider taking legal action if there’s any sort of rollback of patients’ rights put into place.”