Trump administration moves to roll back Obamacare protections for trans people

Transgender and gender non-conforming people are often refused care simply because of who they are.

President Donald Trump arrives in the Kennedy Garden of the White House in Washington, Monday, May 1, 2017, to speak to the Independent Community Bankers Association. CREDIT: AP/Evan Vucci
President Donald Trump arrives in the Kennedy Garden of the White House in Washington, Monday, May 1, 2017, to speak to the Independent Community Bankers Association. CREDIT: AP/Evan Vucci

The Trump administration may scrap a rule that protects transgender and gender non-conforming people from discrimination in health care settings. A motion filed on Tuesday by the U.S. Department of Justice suggests the administration is backing away from enforcement of those protections.

The rule relates to implementation of Obamacare’s Section 1557, which prohibits discrimination based on race, skin color, national origin sex, age, or disability. The discrimination referenced in an ongoing lawsuit relates to gender minorities in particular.

The Trump administration decided to pause litigation that began last year, according to a motion filed by the Justice Department on Tuesday. The relevant lawsuit began last year when five states and religiously affiliated health care providers filed a lawsuit against then-Health and Human Services Secretary Sylvia Matthews Burwell.

Last December, a Texas judge stopped HHS from enforcing the nondiscrimination provision relating to gender identity or termination of pregnancy, according to the motion. On Tuesday, the Justice Department said it did not take issue with the rule being on hold. The Department asked that HHS be given time to “reconsider the regulation at issue in this case” and that a judgment motion “may become moot in light of subsequent administrative proceedings.”

In sum, Section 1557 and its ban will stay in place, but the temporary injunction is on the sections of the regulation that implement it, said Sharita Gruberg, associate director of LGBT Research and Communications at the Center for American Progress. (ThinkProgress is an editorially independent news site housed at the Center for American Progress.)

“They can’t change the law no matter what. It will continue to prevent sex discrimination, which court cases have shown do prevent discrimination against LGBT people,” Gruberg said. “But they want to go back in the regulations and do a whole host of damage, so my assumption is they’re going to take out nondiscrimination protections for trans people under the guise of the injunction.”

Discrimination against gender minorities in a health care setting can take many different forms. Health care professionals may refuse to provide medical care specific to their patients’ health care needs, ask inappropriate questions and use the wrong pronouns, act overly aggressive in a medical exam, or outright refuse care.

One-third of trans people who saw a health care provider in the past year said they had at least one negative experience that related to being transgender, according to a 2015 report from the National Center for Transgender Equality. These negative experiences included being refused treatment, being verbally harassed and getting sexually or physically assaulted.

This kind of treatment has an effect on whether LGBTQ people go to the doctor. Eighteen percent of LGBTQ people who said they experienced discrimination in the past year said they avoided going to the doctor, according to a Center for American Progress report released on Tuesday. The same report found that 23.5 percent of trans people said they avoided going to the doctor’s office in the past year, compared to 4.4 percent of LGB respondents.

A lawsuit filed in 2015 by Jakob Tiarnan Rumble against Fairview Health Services provides an example of this alleged mistreatment from a health care provider. Rumble, a transgender man, filed a lawsuit after hospital staff allegedly refused to acknowledge his gender and made him wait for hours for a doctor despite the fact that he was experiencing severe pain. Rumble also says that the doctor who finally did come to see him mistreated him.

“The whole attitude of the doctor showed disdain for the patient.”

According to the lawsuit, the doctor was hostile toward Rumble when he asked questions about his sexuality. And although Rumble told the doctor he was in pain and to be gentle, the doctor allegedly proceeded to “forcefully jab at” the his genitals . Although Rumble says he asked the doctor to stop, his requests were allegedly ignored, and no one intervened.

In March of last year, U.S. District Judge Susan Richard Nelson ruled that Rumble built a “plausible” case that he was discriminated against on the basis of gender identity. The ruling represented a huge breakthrough for trans and non-conforming people’s health care rights as the first in-depth federal court analysis of Section 1557.

“The whole attitude of the doctor showed disdain for the patient, so the doctor didn’t say, ‘I’m doing this because you’re trans,’ but the court found that is exactly what was going on here … That’s kind of an extreme case, but it happens,” Gruberg said.

When asked whether the administration could also attempt to roll back protections for cisgender queer people, Gruberg said it’s possible that the administration could try to add a religious exemption.

“Currently, there is no religious exemption to nondiscrimination protections in law,” Gruberg said. “Through the regulations process, that was a question the HHS under Obama considered and decided was unnecessary because current first amendment protections are enough for faith-based providers. But I’m not certain that’s not the case with this HHS.”