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WASHINGTON — The Trump administration on Friday 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.
The rule, which does not differ much from a proposed version released last year, is part of a broad Trump administration effort across multiple areas of policy — including education, housing, and employment, as well as health care — to narrow the legal definition of sex discrimination so that it does not include explicit protections for transgender people.
The Affordable Care Act, the 2010 law often known as Obamacare, established broad civil rights protections in health care, barring discrimination on race, color, national origin, sex, age or disability in “any health program or activity” that receives federal financial assistance.
The Obama administration interpreted the provision about sex discrimination to include discrimination on the basis of “gender identity.” Under the original 2016 rule, health care providers and insurers would have been required to provide and cover medically appropriate treatment for transgender patients.
“H.H.S. 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,” said a Friday news release issued by the Department of Health and Human Services, which wrote the rule.
The Obama rule has been tied up in litigation for several years, and the Trump administration has declined to enforce it, citing a court ruling from a judge in Fort Worth, Texas. That means that the final rule does not have any immediate practical effects.
“It’s really, really horrendous to not only gut nondiscrimination protections, but to gut nondiscrimination protections in the middle of a pandemic,” said Rodrigo Heng-Lehtinen, the deputy executive director of the National Center for Transgender Equality. “This is a new low. This rule opens a door for a medical provider to turn someone away for a Covid-19 test just because they happen to be transgender.”
The announcement Friday prompted an outcry from groups devoted to gay and transgender rights, including the Human Rights Campaign, which said it plans to sue the Trump administration.
“We will not let this attack on our basic right to be free from discrimination in health care go unchallenged. We will see them in court, and continue to challenge all of our elected officials to rise up against this blatant attempt to erode critical protections people need and sanction discrimination,” the organization said in a statement.
Rolling back the rule has been a cause for social conservatives since its implementation. They have accused the Obama administration of coercing doctors into sexual reassignment operations, procedures that are typically handled by specialists. Another rule issued by the administration last year would have provided additional “conscience” protections for health care workers with religious or moral objections to certain types of care. That rule has been voided by several federal courts.
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