Health care advocates push back against Trump’s erasure of transgender rights

The Human Rights Campaign, the American Civil Liberties Union and Lambda Legal’s Transgender Rights Project each said they planned to sue the government to reverse the policy.

An empty hallway filled with gurneys at a hospital in Queens, on May 8, 2020. The Trump administration on Friday, June 12, finalized a regulation that will erase protections for transgender patients against discrimination by doctors, hospitals and health insurance companies, a move announced on the four-year anniversary of the massacre at a gay nightclub in Orlando and in the middle of Pride Month. (Erin Schaff/The New York Times)

Health advocates representing American hospitals, medical groups, insurers and civil rights associations condemned the Trump administration on Saturday for rolling back protections for transgender patients, and for doing so amid a global pandemic.

The new rule, long sought by conservatives and the religious right, narrows the legal definition of sex discrimination in the Affordable Care Act so that it omits protection for transgender people. It also opens the door for health care providers to refuse to treat patients who have had abortions.

The move is part of a broad set of policy changes that weaken safeguards for transgender people across multiple sectors, including education, employment and housing. The changes to the Affordable Care Act, often referred to as Obamacare, were proposed last year.


“This is a sad day,” Ricardo Lara, California’s insurance commissioner, said in a statement on Friday evening. “The Trump administration has once again sacrificed the health and safety of vulnerable Americans.”

Lara, who had written a letter signed by 18 state insurance commissioners urging the administration to reject the proposal, criticized the president for releasing the rule during June, which is Pride Month, and on the fourth anniversary of the massacre at Pulse, a gay nightclub in Orlando, Florida, where 49 people were killed and more than 50 wounded on June 12, 2016.

“Eliminating health protections for LGBTQ people is a license to deny lifesaving care,” Lara said.

Spokesmen for the American Medical Association; the American Hospital Association; America’s Health Insurance Plans, known as AHIP; and the American Medical Student Association all opposed the change, as did human rights associations. The Human Rights Campaign, the American Civil Liberties Union and Lambda Legal’s Transgender Rights Project each said they planned to sue the government to reverse the policy.

Jason Starr, litigation director for the Human Rights Campaign, said that he had heard scores of cases of health care discrimination against transgender people and that he feared that this reversal would hurt those seeking health care.


“The stories we hear give real life to the objective data,” Starr said. He emphasized that transgender women of color were especially anxious about seeking medical care.

He said: “They wonder, ‘What is going to happen when I go to the doctor? Am I going to be mis-gendered? Am I going to be mocked or ridiculed? Is my doctor going to actually listen and respect my knowledge about my own body and my health?’”

When the Department of Health and Human Services proposed the rule last year, nearly 160,000 people weighed in with written comments. Many of the writers were affiliated with the Family Research Council, the American Civil Liberties Union, or other organizations. Others were individuals whose affiliations were not noted.

One doctor, Terry McDole, typified the view of physicians who supported the proposal.

“The issue is not providing patient care, but whether or not the government can coerce me into abandoning my ethical commitments and medical judgment and force me to participate in certain controversial procedures and prescriptions,” McDole wrote. “Many health professionals like me who adhere to moral and ethical principles, which often reflect deeply held faith values, already face significant pressure and discrimination. The pressure to conform to abortion and transgender ideology can be particularly intense.”


The religious community is not a unified voice on this issue, however. The Catholic Health Association of the United States, which represents the largest nonprofit provider of health care services in the country, opposes the rule.

“While we welcome the efforts to reaffirm the unique mission of faith-based health care providers,” Sister Mary Haddad, president and chief executive of the association, said in a statement, “refusing to provide medical assistance or health care services merely because of discomfort with or animus against an individual on the basis of how that person understands or expresses gender or sexuality is unacceptable.”

Nearly all the nation’s medical organizations, as well as insurance groups, objected to the final rule. Matt Eyles, president and chief executive of America’s Health Insurance Plans, said, “Health insurance providers will continue to work with other health care leaders to eliminate barriers that stand between Americans who identify as a member of the LGBTQIA community and their better health.”

In a statement, Dr. Susan R. Bailey, president of the American Medical Association, said that the organization’s long-standing policy bars discrimination based on race, gender, sexual orientation, gender identity or a woman’s decisions about pregnancy, including termination.

While Democrats were quick to condemn the rule, few objections came publicly from Republicans.

“The Trump Administration’s decision to eliminate protections for transgender patients is simply wrong,” said Sen. Susan Collins, R-Maine, in a tweet. “I’ll work to overturn this discriminatory policy.”

Some legal experts cautioned that despite the outpouring of support from medical groups, the protections once endowed under the Affordable Care Act would themselves need protecting in order to last.


“A huge contribution of the ACA was to prohibit, for the first time, sex discrimination in health care,” said Elizabeth Sepper, a law professor at the University of Texas. “This rule not only narrows what is considered sex discrimination, it also narrows who has to comply with anti-sex-discrimination policy.”

“We all like to think that health care providers will always act in a patient’s best interest and be kind and gentle,” said Sepper, an expert in religious liberty and health law. “But transgender people often find that not to be true. This rule really invites, I would say, bad medicine and cruelty.”


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