Trump moves to revoke health care protection for transgender people

Transgender flags during a transgender rights protest outside of the White House in 2018.
Transgender flags during a transgender rights protest outside of the White House in 2018.Sarah Silbiger/New York Times/File

WASHINGTON — The Trump administration moved Friday to revoke newly won health care discrimination protections for transgender people, the latest in a series of actions that aim to reverse gains by LGBTQ Americans in areas ranging from the military to housing and education.

The Health and Human Services Department released a proposed regulation that in effect says ‘‘gender identity’’ is not protected under federal laws that prohibit sex discrimination in health care. It would reverse an Obama-era policy that the Trump administration already is not enforcing.

‘‘The actions today are part and parcel of this administration’s efforts to erase LGBTQ people from federal regulations and to undermine nondiscrimination protections across the board,’’ said Omar Gonzalez-Pagan, a senior attorney on health care at Lambda Legal, a civil rights organization representing LGBT people.


More than 1.5 million Americans identify as transgender, according to the Williams Institute, a think tank focusing on LGBT policy at the UCLA School of Law. A bigger number — 4.5% of the population— identify as lesbian, gay, bisexual, or transgender, according to Gallup.

Pushing back against critics, the HHS official overseeing the new regulation said transgender patients would continue to be protected by other federal laws that bar discrimination on the basis of race, color, national origin, sex, age, and disability.

‘‘Everyone deserves to be treated with dignity and respect,’’ said Roger Severino, who heads the HHS Office for Civil Rights. ‘‘We intend to fully enforce federal laws that prohibit discrimination.’’

Asked about the charge that the administration has opened the door to discrimination against transgender people seeking needed medical care of any type, Severino responded, ‘‘I don’t want to see that happen.’’

In some places LGBT people are protected by state laws, said Lambda Legal attorney Gonzalez-Pagan, ‘‘but what do you say to people living in a state that doesn’t have state-explicit protections? Do they move their home?’’


Under the current federal rule, a hospital could be required to perform gender-transition procedures such as hysterectomies if the facility provided that kind of treatment for other medical conditions. The rule was meant to carry out the antidiscrimination section of the Affordable Care Act, which bars sex discrimination in health care but does not use the term ‘‘gender identity.’’

The proposed new rule would also affect the notices that millions of patients get in multiple languages about their rights to translation services. Such notices often come with insurer ‘‘explanation of benefits’’ forms. The Trump administration says the notice requirement has become a needless burden on health care providers, requiring billions of paper notices to be mailed annually at an estimated five-year cost of $3.2 billion.

The American Civil Liberties Union served notice it expects to challenge the rule in court when it is final. Louise Melling, ACLU deputy legal director said the potential impact could go beyond LGBT people and also subject women to discrimination for having had an abortion.

That’s because the proposal would remove ‘‘termination of pregnancy’’ as grounds for making a legal claim of sex discrimination in health care, one of the protections created in the Obama years. Abortion opponents had argued that the Obama regulation could be construed to make a legal argument for federal funding of abortions.

For transgender people, the Trump administration’s proposal would reverse the Obama administration conclusion that the Affordable Care Act’s anti-discrimination section does indeed protect them in seeking health care services.