Trump Health Officials Prepare to Promote Anti-Trans Discrimination
by Harper Jean Tobin
The U.S. Department of Health and Human Services (HHS) is the latest federal agency to make moves against the transgender community under the Trump administration.
Last month, the agency removed web pages that contained frequently asked questions about a law ensuring that trans people are covered by non-discrimination laws when seeking health care.
As if that wasn’t enough, HHS also announced preparations last week to rewrite a non-discrimination regulation so that it no longer recognizes transgender people. The regulation makes it clear that Section 1557 of the Affordable Care Act (ACA) — Obamacare — prohibits discrimination against transgender people by health care providers or insurance companies.
Like other federal agencies, HHS has demonstrated a desire to roll back policies that are aimed at improving health care for LGBTQ people.
What was in the Section 1557 regulation and FAQs?
Section 1557 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.
The FAQs also provided insurers with more specific practical advice on issues like ensuring that no one is appropriate health screenings or treatments just because computer billing codes limit those services to one gender.
What has happened with the regulation and FAQs over the last few months?
A single federal judge in Texas — ignoring case law from around the country — temporarily stopped HHS from enforcing Section 1557 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.
Specifically, the note said:
Areas of sex discrimination that HHS OCR may continue to enforce include: harassment based on sex and allegations related to sex stereotyping that do not involve gender identity claims, as well as other forms of discrimination based on sex other than gender identity or termination of pregnancy. (Emphasis added.)
The FAQs further noted that, “More than 25 years ago, the U.S. Supreme Court held that discrimination based on stereotypical ideas about gender is unlawful sex discrimination.”
March and April 2017
President Trump appointed Roger Severino, a lawyer who spent much of his career opposing civil rights for LGBTQ people, to be the director of HHS OCR.
Shortly thereafter, mentions of investigating harassment and other discrimination based on sex stereotypes disappeared from the FAQs.
In doing this, OCR went out of its way to avoid recognizing longstanding Supreme Court case law and even a hint that anti-LGBTQ discrimination might be illegal.
The Trump administration confirmed that it would not defend Section 1557 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.
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.
HHS said in a court filing that it had written a draft proposal to roll back the 1557 regulation, 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 Section 1557 regulation?
While the Section 1557 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.
This is unlikely to lead to a complete reversal of the progress made in recent years — for example, a survey of 2017 individual health plans in 16 states found that over 95 percent no longer had broad exclusions on transition-related health care. However, it does threaten to erode these advances. For example, the state of Wisconsin is currently facing a federal lawsuit after eliminating exclusions for transition-related health care in its state employee plan in response to the 1557 regulation, then putting it back in. And NCTE has heard of a handful of private plans starting to do the same thing.
While the full impact is impossible to predict, one thing is clear to us: no one should face discrimination when it comes to health care.
Section 1557 and the regulation interpreting it have garnered strong support from medical associations, industry groups, health experts, civil rights advocates, and tens of thousands of ordinary people who filed comments with HHS in 2015, all of whom helped to get the regulation published in the first place. Recently, the American Medical Students Association, the World Professional Association for Transgender Health (WPATH), and the American Psychological Association all urged HHS to stop policy moves that would promote discrimination.
NCTE will continue to watch what HHS does, hold them accountable, and encourage transgender people to keep asserting their rights.
How can you help?
Harper Jean Tobin is the director of policy at NCTE.