On Friday, the Trump administration unveiled its long-awaited assault on transgender patients, unveiling a draft rule that permits health care providers and insurance companies to discriminate against individuals on the basis of their gender identity. It marks the third time this week that the administration has rolled back federal protections for trans people, after allowing health care workers to refuse treatment for trans patients and homeless shelters to turn away trans people. The proposed rule, written by the Department of Health and Human Services, also permits providers to discriminate against women who seek care after obtaining an abortion.
Trump’s HHS has been crafting this policy for years in an effort to exclude trans people from the Affordable Care Act’s Section 1557. That provision bars most health care providers and insurance companies from discriminating against patients on the basis of sex (among other things). It incorporates the definition of sex discrimination used in various civil rights laws, most notably Title IX, which applies to educational institutions. The Obama administration enacted a rule interpreting Section 1557 to protect transgender people, explaining that discrimination against a patient who transitions from one sex to another is, by definition, sex discrimination. But on the last day of 2016, U.S. District Judge Reed O’Connor issued a nationwide injunction blocking the rule, ruling that sex encompasses only “biological differences between males and females.” (O’Connor has since gained notoriety for his decision holding that the entire Affordable Care Act is unconstitutional.)
The Trump administration, which purports to oppose nationwide injunctions, told O’Connor that it agreed with his decision and would create a new rule that complied with the ACA, ending any possible appeal. Now it has, and the result is cruel, misleading, and extraordinarily offensive. HHS’ basic theory—that sex discrimination does not include discrimination against people who transitions sexes—is baffling. When a doctor refuses to, for instance, prescribe hormones to a transgender woman, he is discriminating on the basis of sex: He believes his patient is a man and should not receive treatment for women. It is difficult to think of a clearer example of sex discrimination in health care, other than an outright refusal to treat patients of a certain gender.
Two aspects of the rule stand out as especially deceptive and disturbing. (To understand why, remember that the ACA’s definition of sex discrimination is drawn from Title IX.) First, in the main text, HHS cites two district court decisions ruling that Title IX’s ban on sex discrimination does not protect transgender people. It also cites two district court decisions reaching the opposite conclusion to illustrate that the courts “have been inconsistent on the issue.” In reality, however, the clear majority of district courts to consider “the issue” have found that Title IX does protect trans people. HHS wrongly implies that the district courts are evenly split.
The agency then pulls another sleight of hand: It relegates to a footnote decisions by four federal appeals courts holding that Title IX can or must be read to encompass anti-trans discrimination. Reading the rule, you would never guess that the weight of judicial authority contradicts HHS’ legal theory. It states only that these appeals courts “have addressed the issue”—not that, upon confronting the issue, they unanimously agreed that anti-trans discrimination is sex discrimination.
A second duplicitous passage in the new rule is even more alarming. In an ominous tangent regarding Title IX, HHS suggests that merely compelling non-trans students to be around trans students might itself constitute illegal sex discrimination. “Policies of covered entities that result in unwelcome exposure to, or by, persons of the opposite biological sex,” the rule states, “where either party may be in a state of undress—such as in changing rooms, shared living quarters, showers, or other shared intimate facilities—may trigger hostile environment concerns under Title IX.”
This assertion is remarkable. The Trump administration has apparently adopted the position of anti-LGBTQ law firms that sue to block trans-inclusive school policies for allegedly violating non-trans students’ right to privacy. These lawsuits have universally failed in federal courts. Yet HHS adopts it here, insisting that, by treating trans students equally, schools may violate the law. Put differently, the administration argues that Title IX doesn’t forbid discrimination against trans students, but actually requires it. HHS may be laying the groundwork for a future rule that would force schools to mistreat trans kids, an astonishing distortion of the law.
Friday’s draft rule, then, is a one-two punch: It abolishes the ACA’s protections for trans patients while further diminishing the rights of trans schoolchildren. But HHS doesn’t have the last word on the meaning of the ACA. The law grants individuals a private right to enforce it in court, and civil rights groups are already preparing their lawsuits. Moreover, the Supreme Court will soon decide the meaning of sex discrimination in an analogous statute; its ruling may finally settle this issue for good. In other words, the rights of LGBTQ people rest in the hands of Chief Justice John Roberts. And Trump’s bureaucrats are giving Roberts ample excuses to blow up civil rights law as we know it.
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