Trump officials to roll back LGBTQ protections

The Trump administration will scrap ObamaCare’s nondiscrimination protections for sex and gender identity under a final rule released Friday.

In a statement, the Department of Health and Human Services (HHS) said the government’s interpretation of sex discrimination will be based on “the plain meaning of the word ‘sex’ as male or female and as determined by biology.”

According to HHS, the new policy makes clear that “the substantive protections prohibiting discrimination on the basis of race, color, national origin, disability, age, and sex remain in effect.”

The move was announced amid Pride Month but has been long-anticipated by religious providers, who argue the administration needs to reinforce their right not to provide treatment that is against their beliefs.

The administration has been working on the rule for well over a year.

Advocates and health groups said the policy will make it easier for doctors, hospitals and insurance companies to deny care or coverage to transgender and nonbinary patients, as well as women who have had abortions.

“HHS respects the dignity of every human being, and as we have shown in our response to the pandemic, we vigorously protect and enforce the civil rights of all to the fullest extent permitted by our laws as passed by Congress,” said Roger Severino, director of the HHS Office for Civil Rights.

The administration has argued that removing the protections, based on Section 1557 of the Affordable Care Act, is largely moot because a federal judge in Texas vacated much of the rule last year.

The Obama-era rule made it illegal for doctors, hospitals and other health care workers to deny care to someone whose sexual orientation or gender identity they disapproved of.

The Obama administration did this by expanding the health law’s definition of sex discrimination to include gender identity for the first time, but those expansions were blocked by a federal judge in 2016. The Trump administration has worked to weaken the rules before they could take effect.

The Trump administration’s rule is wide-ranging and goes beyond the Obama-era protections by rolling back nondiscrimination protections contained in other health provisions as well. According to the Kaiser Family Foundation, the rule removes protections based on sexual orientation and gender identity in 10 existing regulations.

Advocates and Democratic lawmakers said the decision to move ahead with the rule while the country is still in the middle of a pandemic is especially cruel. The concern is that LGBTQ patients might not be able to access the care they need.

The COVID-19 pandemic has already impacted access to medical treatment, as almost all “nonessential” procedures were halted, people stopped going to the emergency room and even stopped giving their children needed vaccines.

Yet even as states begin to reopen and loosen restrictions on nonessential medical procedures, advocates worry that LGBTQ patients will be discouraged from seeking treatment, coronavirus-related or otherwise. 

“At a time when protecting communities from the COVID-19 pandemic is paramount, your Department and the Trump Administration are knowingly putting the health and wellbeing of vulnerable individuals and children at risk, while blatantly promoting discrimination against LGBTQIA+ communities and religious minorities by pursuing the finalization of this proposed rule,” Sens. Ron Wyden (D-Ore.) and Patty Murray (D-Wash.) wrote in a letter to HHS Secretary Alex Azar.

Katie Keith, a health care consultant and professor at Georgetown Law, said the rule will target vulnerable communities, likely making existing health care disparities worse.

“The circumstances [of the pandemic] make it harmful, but it would be harmful either way. It seems extra callous to push the regulation out at this point in time,” Keith said.

The Human Rights Campaign immediately announced that it will file a lawsuit to overturn the rule and slammed the administration for releasing it on the anniversary of the Pulse shooting, where a gunman killed 49 people in an LGBTQ nightclub.

The administration’s move was praised by religious conservatives and anti-abortion groups.

Ryan Anderson, a research fellow at the Heritage Foundation, praised the administration for rescinding “unlawful and misguided” regulations.

Anderson said the Obama-era rule “would have required doctors, hospitals, and health care organizations to act in ways contrary to their best medical judgments, their consciences and the physical realities of their patients.” 

Updated at 5:22 p.m.