Trump Health Officials Prepare to Promote Anti-Trans Discrimination

by Harper Jean Tobin

PHOTO: Secretary of Health & Human Services Alex Azar (Photo Credit: Rex Features via AP Images)

What was in the Health Care Rights Law regulation and FAQs?

Health Care Rights Law is part of federal law, and the regulation interprets and enforces that law. The regulation was first published in 2016 after six years of development, and was accompanied by frequently asked questions that summarized parts of the regulation about unlawful insurance exclusions that target transgender people, harassment in health care settings, and the need to treat patients in a manner consistent with their gender identity — among many other issues.

Screenshots of the Section 1557 regulation FAQs regarding discrimination on the basis of gender identity. Sources: Internet Archive Wayback Machine (January 2017); U.S. Department of Health and Human Services (August 2017)

What has happened with the regulation and FAQs over the last few months?

December 2016

A single federal judge in Texas — ignoring case law from around the country — temporarily stopped HHS from enforcing the Health Care Rights Law to protect trans people. Shortly thereafter, the HHS Office of Civil Rights (OCR) updated its FAQs to include a note about this judge’s decision, clarifying that it would still enforce non-discrimination protections based on race, color, national origin, age, or disability, but that it would only cover some sex discrimination cases.

March and April 2017

Director of the U.S. Department of Health and Human Services Office of Civil Rights Roger Severino, during his tenure as Director of the DeVos Center for Religion and Civil Society in the Institute for Family, Community, and Opportunity at The Heritage Foundation. Photo credit: The Daily Ledger

May 2017

The Trump administration confirmed that it would not defend Health Care Rights Law in any way from an anti-LGBTQ legal challenge and instead asked the Texas district judge to put the court case on hold while the administration began preparations to repeal both the regulation and its recognition of protections for trans people.

July 2017

Once again, OCR quietly trimmed its FAQs — this time to remove all mentions of protections related to gender identity or sex stereotypes, except for the explanation of the temporary court order. OCR even cut any mention of the law’s application to harassment. While the underlying law remains in effect, insurance companies will now find nothing when looking to HHS for advice on what they should do to avoid discrimination arising from billing code issues.

August 2017

HHS said in a court filing that it had written a draft proposal to roll back the Health Care Rights Law, and that draft was under review by the Justice Department, and would be published in the coming weeks or months.

While OCR’s actions are unlikely to lead to a wholesale reversal of the gains made in recent years, they do threaten to erode these advances.

What’s at risk if HHS writes trans people out of the Health Care Rights Law regulation?

While the Health Care Rights Law regulation and FAQs about it simply interpret the law and give advice on how to comply, OCR’s continuous trimming of them sends a clear message that providers and insurance companies can freely deny needed care to transgender people.

The author speaking at a rally opposing the repeal of the Affordable Care Act, July 26, 2017.

How can you help?

We at NCTE and the Transgender Law Center have launched #ProtectTransHealth, a national campaign to fight back against the Trump administration’s attacks on our rights. At the Protect Trans Health website, you can sign up to be the first to know once HHS does unveil its new anti-transgender regulation. You can also sign up to share your story of discrimination from a health care provider or insurer.



A joint project of the National Center for Transgender Equality and Transgender Law Center.

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