Trump Administration Really Wants Doctors To Discriminate Against Trans People For Some Reason
On Friday afternoon, the Trump administration celebrated Pride Month and commemorated the anniversary of the mass shooting at the Pulse night club with a rule that would allow doctors to discriminate against the LGBTQ community, trans people in particular, and also those who have abortions.
The HHS released a statement explaining that they would continue preventing covered health programs or activities from discriminating against people on the basis of sex, but removed Obama-era regulations "that redefined sex discrimination to include termination of pregnancy and gender identity, which it defined as 'one's internal sense of gender, which may be male, female, neither, or a combination of male and female,'" and explained that HHS would continue to allow discrimination on the basis of sexual orientation.
In Section 1557, Congress prohibited covered health programs or activities from discriminating on any of the grounds protected by longstanding federal civil rights statutes. One of those federal statues is Title IX of the Education Amendments of 1972 (Title IX) prohibiting discrimination on the basis of sex in certain federally funded programs. In 2016, the previous administration issued a regulation implementing Section 1557 (the 2016 Rule) that redefined sex discrimination to include termination of pregnancy and gender identity, which it defined as "one's internal sense of gender, which may be male, female, neither, or a combination of male and female."
On December 31, 2016, a federal court preliminarily enjoined, on a nationwide basis the prior administration's attempt to redefine sex discrimination in the 2016 Rule, concluding that the provisions were likely contrary to applicable civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act. A second federal court agreed. On October 15, 2019, the first federal court issued a final judgment, and vacated and remanded these provisions as unlawful; this final ruling is binding on HHS. HHS has not been able to enforce these provisions since December 2016, and the provisions have been vacated since October 2019.
Under the final rule, HHS eliminates certain provisions of the 2016 Rule that exceeded the scope of the authority delegated by Congress in Section 1557. HHS will enforce Section 1557 by returning to the government's interpretation of sex discrimination according to the plain meaning of the word "sex" as male or female and as determined by biology. The 2016 Rule declined to recognize sexual orientation as a protected category under the ACA, and HHS will leave that judgment undisturbed.
There are a variety of ways this could impact patients seeking treatment. A doctor could refuse to care for a transgender person or to perform gender affirmation surgeries (which is probably not a thing that doctors who hate trans people specialize in to begin with) or to prescribe hormone pills. Insurance companies could refuse to cover any of these things. But doctors could also refuse to cover basic care for people whose very existence offends their religious sensibilities and insurance companies could refuse to cover basic treatments for those people as well. For instance, an insurance company could refuse to cover ovarian cancer treatment for trans man, simply because they do not like the idea of trans people existing.
The HHS announcement also notes that the elimination of these regulations will save people $2.9 billion a year on inserts notifying people of their rights in health care mailings. Why? Because they no longer have those rights. Fun!
The final rule will also relieve the American people of approximately $2.9 billion in unnecessary regulatory burdens over five years from eliminating the mandate for regulated entities to send patients and customers excessive "notice and taglines" inserts in 15 or more foreign languages in almost every health care mailing, costs that get passed down to patients and consumers. These expensive notices have not generally proven effective at accomplishing their purpose of providing meaningful language access to healthcare.
Imagine being the person who would say "Hmmm! I wasn't really on board with the discrimination, but if it saves us a few bucks, why not?" Especially since it would very likely require also being the kind of person who is so squicked out by the idea of "socialism" that they would happily go on paying absurd amounts of money on health care simply for the privilege of keeping predatory insurance companies around.
This new rule was the brainchild of Roger Severino, who directs the Office for Civil Rights in the Department of Health and Human Services. As with every other Trump appointee, Severino is the exact opposite of the kind of person who should be heading such a department. He is not very fond of civil rights! In fact, his key interest in the time that he has held this position has been trying to push for laws that allow doctors to discriminate against people for religious reasons.
Let us keep in mind that the people cheering for this rule, the people who want this rule, are the same people who are very, very upset about "cancel culture," and the kind of "viewpoint discrimination" that leads to Ivanka Trump not being able to give a commencement speech to a college in Wichita, Kansas. Apparently, while it's bad for advertisers to "cancel" Tucker Carlson by refusing to give him money to air advertisements during his show because of how he is an unrepentant racist, it is great for doctors to "cancel" patients because their religion tells them that trans people, gay people or people who have abortions are bad. Glad we're all clear on that!
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Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse