The new rule is expected to go into effect in the middle of the pandemic.
The Trump administration is expected to soon finalize a Department of Health and Human Services administrative rule to roll back health care discrimination protections for LGBTQ people, according to a Politico report.
The rule, which was first proposed in May 2019, would reverse an Obama-era interpretation that sex discrimination under Section 1557 of the Affordable Care Act applied to discrimination against queer and trans people.
Trans people especially face overwhelming levels of discrimination from health care providers. According to a 2010 study, almost one in five trans people said they had been denied care by a medical provider because of their gender identity, and 28 percent were subjected to harassment in a medical setting. It was that reality that the Obama administration attempted to address by including LGBTQ people under the definition of sex discrimination, conforming to an increasing wave of state and federal court rulings.
The Obama-era rule made it illegal for doctors, hospitals, and other health care workers to deny care to someone whose sexual orientation or gender identity they disapproved of. What the new Trump administration rule will do, as it was originally proposed, is allow health care providers to deny care to anyone they perceive as trans or gay. It will allow hospitals to house trans women and men according to their birth-assigned sex, or condition emergency treatment on the stoppage of cross-sex hormones. It would also allow insurance companies to reinstate blanket bans on transition-related care like gender reassignment surgery or hormone replacement therapy.
In the age of Covid-19, when hospitals are operating near capacity, the rule could also mean the life of a sick trans person is quite literally at the whim of a doctor’s personal beliefs about trans people.
That fear was already permeating throughout the trans community before news of the finalized rule was released. “I’m scared to say this out loud, but I’m afraid that trans people will face things like being deprioritized for ventilators or for care,” Bre Kidman, a non-binary candidate for US Senate in Maine, told Vox earlier this month.
Politico reports that the rule was circulated among Department of Justice staff Thursday, and the White House updated a regulatory dashboard indicating that the rule is under review, which signals that the final ruling could be issued within the next few days.
Gillian Branstetter, a spokesperson for the National Women’s Law Center, criticized the administration’s timing for moving forward with the rule in the middle of a pandemic. “It’s egregious that we are losing 3,000 Americans a day to an unprecedented public health emergency and a top priority of the Trump administration is making sure doctors can turn away trans people,” she told Vox. “We already know that trans people face a patchwork of health inequities that leaves them at risk for any number of health concerns. This rule threatened the well-being of trans people before this pandemic. During this pandemic, it is beyond immoral to worsen any group’s access to health care.”
The Trump administration’s war on trans health care began more than a year ago
The fight over the rule began in December 2018 with a nationwide injunction on the Obama interpretation. It was issued by conservative favorite, federal Judge Reed O’Connor, who has issued numerous rulings overturning Obama-era rules regarding the Affordable Care Act, abortion access, and access to birth control.
It’s that ruling, an HHS spokesperson told Politico, with which the department is complying. HHS head of civil rights Roger Severino defended that agency’s treatment of marginalized communities to Politico. “As we have shown in our recent efforts to protect persons from disability and age discrimination during the pandemic, HHS will vigorously enforce civil rights laws as passed by Congress, before, during, and after any rulemaking,” he said in a statement.
Before his stint as HHS civil rights chief, Severino was a fierce critic of the Obama administration’s efforts to protect LGBTQ people from discrimination. Proponents of the new rule have pushed the false notion that doctors were being forced to perform gender reassignment surgeries that they were uncomfortable with. In reality, transgender surgical care is highly specialized, and trans people are unlikely to go to a doctor who isn’t experienced in the procedure.
With the new rule, the US trans community is now looking at a possible return to a health care environment that allowed oncologists to deny cancer care to Robert Eads, a trans man who developed ovarian cancer and was never notified of his diagnosis. When he finally learned of it, his doctor said his first instinct was to send Eads to a psychologist rather than treating his cancer. Eads died in 1999. Or Tyra Hunter, who died after an EMT discovered her trans status following a car accident and refused to touch her on the trip to the hospital, mere miles from the White House.
Aside from the new rule possibly going into effect next week, the LGBTQ community also awaits two Supreme Court decisions on whether queer and trans people are protected under sex discrimination provisions of federal civil rights law.
“Trans people are terrified of the [Supreme Court] case,” said Branstetter. “Behind a lot of that fear is the understanding that the Trump administration has been hard at work instilling long-term damage to LGBTQ rights. It’s not just the Trump administration, it’s an entire sphere of right-wing organizations who have made their primary goal the erasure of trans people from public life.”
Conservatives haven’t let the pandemic slow down their political agenda
Thanks to the coronavirus pandemic, there will likely be no White House protests against the new rule, or rallies in multiple cities nationwide to stand up for LGBTQ people.
In many ways, the coronavirus pandemic has provided convenient cover for conservatives to enact several political priorities while the nation’s attention is on the virus and gatherings are strongly discouraged.
At the state level, Idaho enacted two anti-trans laws in late March, while South Carolina held a hearing on a bill that would ban transition care for trans minors while the state was under a shelter-at-home order. Additionally, Trump’s DOJ filed a statement of interest in a federal lawsuit seeking to ban trans girls from high school girl’s sports in Connecticut.
The anti-trans moves join multiple state-level attacks on abortion access during the pandemic, with Texas, Ohio, Alabama, and Mississippi all moving to ban or restrict the procedure under bans on “nonessential surgeries.” Texas eventually eased its ban on nonessential surgeries, while three states saw the attempted bans stopped in federal court — meaning abortion care is still being provided in each state at this time.
Flying a bit further under the radar have also been several attempts to use the pandemic to justify loosening environmental and business regulations that have long been a goal of the Trump administration.
On March 26, the Environmental Protection Agency issued a directive saying it would “not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that Covid-19 was the cause of the noncompliance.” The move allows air polluters to flout federal law without fear of penalty, right when clean air is perhaps most important for the health and safety of everyday Americans.
Then, in early April, the administration finalized its rollback of Obama-era requirements for vehicle fuel efficiency.
Several conservative groups, including the Heritage Foundation, also recently released plans for the administration to pursue deregulation of business and environmental rules. Among the Heritage plans the White House found intriguing was a call for the president to ask agencies not to enforce small business regulations altogether.
“A presidential call for a wide-scale policy of non-enforcement would send a very strong signal to businesses that the government is not going to come down hard on them as they try to get back up and running,” the Heritage plan said.
Left-leaning policy experts disagree. “This sounds exactly like the type of opportunistic political move that absolutely should not be attempted right now,” Jared Bernstein, a former adviser to presumptive Democratic presidential nominee Joe Biden, told the Washington Post. “Correlations between regulations and economic activity are far shakier than they assume, and I don’t believe this idea will help at all.”
It’s been clear since the pandemic started that there is no bad time for the Trump administration to push their political agenda, even if that means costing Americans — LGBTQ or not — their lives.
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Author: Katelyn Burns