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President Trump
In a proposed rule issued May 24, the U.S. Department of Health & Human Services outlined its plan to repeal an Obama-era policy that banned health care providers from discriminating against transgender patients. As part of the Affordable Care Act, Congress had directed HHS to apply existing civil rights and health care regulations to the health law exchanges, including rules that were consistent with Title IX, the federal law that prohibits discrimination on the basis of sex in federally funded programs. The Obama administration’s interpretation of this directive barred health care providers from denying care to transgender patients based on gender identify, defined as a patient’s “internal sense of being male, female, neither, or a combination of male and female.”
Repealing the transgender protections in the antidiscrimination policy will make the regulation more consistent with Title IX, according to HHS. In addition, revoking other provisions in the Obama-era policy associated with non–English speaking patients will reduce regulatory costs for unnecessary paperwork by $3.2 billion, according to a statement from the HHS.
“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” said Roger Severino, director of the HHS’s Office for Civil Rights, in the statement. “The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives. The proposed rule would accomplish both goals.”
In addressing the reasoning for the proposal, Mr. Severino noted two court decisions that have found the Obama-era policy unlawful. In 2016, the U.S. District Court for the Northern District of Texas temporarily barred the protections from being enacted, ruling that HHS had adopted an erroneous interpretation of “sex” under Title IX, and that the regulation was arbitrary and capricious for failing to incorporate Title IX’s religious and abortion exemptions. The U.S. District Court for the District of North Dakota agreed in a subsequent decision. Since the preliminary bans against the provisions, HHS has not enforced the protections. Removal of the discrimination protections for transgender patients would conform with the courts’ plain understanding of federal sex discrimination laws, according to HHS.
HHS emphasized that the proposed rule is not intended to remove any protections provided by Congress or to restrict states’ ability to enact health care discrimination protections that exceed Title IX requirements. Rather, the proposed rule would ensure that Title IX and corresponding regulations “follow the will of Congress with respect to the states by not expanding Title IX’s definition of ‘sex’ beyond the statutory bounds,” according to the proposed rule.
In addition to removing the transgender protections, the HHS also proposed to eliminate provisions under the Obama-era policy that required health care literature to be translated into 15 languages. The proposed revisions would eliminate $3.2 billion in unneeded paperwork burdens imposed by the translations, according to the agency. Mr. Severino indicated that the money saved could be used to more effectively address individual needs of non–English speakers such as by providing increased access to translators and interpreters.
The American College of Physicians expressed concern about the agency’s move to rewrite the discrimination rule.
“ACP believes that discrimination against patients, including those who identify as lesbian, gay, bisexual, and transgender (LGBT), creates social stigma that has been linked to negative physical and mental health outcomes, including anxiety, suicide, and substance or alcohol abuse,” ACP President Robert McLean, MD, said in a statement. “ACP strongly urges the administration to withdraw their proposal, and instead, make meaningful policy changes that will ensure nondiscrimination in health care against all patients, regardless of their sexual orientation, gender or gender identity, disability, or proficiency in the English language.”