health care

Trump team moves to scrap protections for LGBTQ patients

The health department's top civil rights official also defended the administration's approach to vulnerable populations.

Department of Health and Human Services

The Trump administration is moving to scrap an Obama-era policy that protected LGBTQ patients from discrimination, alarming health experts who warn that the regulatory rollback could harm vulnerable people during a pandemic.

The health department is close to finalizing its long-developing rewrite of Obamacare’s Section 1557 provision, which barred health care discrimination based on sex and gender identity. The administration’s final rule on Thursday was circulated at DOJ, a step toward publicly releasing the regulation in the coming days, said two people with knowledge of the pending rule. The White House on Friday morning also updated a regulatory dashboard to indicate that the rule was under review. Advocates fear that it would allow hospitals and health workers to more easily discriminate against patients based on their gender or sexual orientation.

The Obama administration moved to create its non-discrimination protections in response to advocates and health care experts who said that LGBTQ patients were being turned away from necessary care or intimidated from seeking it out. The broad rule also offered specific protections for transgender patients for the first time and extended protections for women who had abortions. But a federal judge in 2016 blocked those protections following a lawsuit from religious groups, and the Trump administration has steadily worked to weaken the rule before it could take full effect.

In last year's proposal, the health department also proposed changes that went further than simply rolling back the new Obama protections, moving to eliminate similar nondiscrimination protections for LGBTQ patients that were contained in other regulations.

"If the final rule is anything like the proposed rule, HHS is adopting changes that would be harmful in the best of times but that are especially cruel in the midst of a global pandemic that is disproportionately affecting vulnerable communities and exacerbating disparities,” said Katie Keith, a lawyer and Georgetown professor who’s tracked the rule.

HHS declined to comment on the possibility of a pending rule, and an administration official said that are no protections to "scrap" given that Texas Judge Reed O'Connor tossed the Obama-era policy last year.

“A federal court has vacated the gender identity provisions of the regulation and we are abiding by that court order," a HHS spokesperson said. "We do not comment on the rulemaking process and refer you to recent public filings made by the Department of Justice before the Supreme Court on what constitutes sex discrimination under civil rights laws.”

The health department's top civil rights official also defended the administration's approach to vulnerable populations. “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,” Roger Severino, the HHS civil rights chief, said in a statement. He added that the Obama administration "declined to recognize sexual orientation as a protected category under Obamacare, and HHS proposed to leave that judgment undisturbed" in last year's proposed rule. Severino was an active critic of the Obama-era non-discrimination rules before joining the administration.

Any rule issued by the Trump administration on LGBTQ protections could be short-lived. The Supreme Court is set to rule on whether the Civil Rights Act protects LGBTQ workers, which could create a new regulatory framework and force health officials to swiftly return to the drawing board.

Meanwhile, advocates say they're worried that LGBTQ patients could be deterred from seeking care during a public health crisis. The liberal-leaning Center for American Progress published findings that 8 percent of lesbian, gay, and bisexual adults and 29 percent of transgender adults said they had been turned away by a health care provider based on their sexual orientation or gender identity.

“I’m really scared about what that means for testing, for treatment, for people’s comfort-seeking care,” said Sharita Gruberg, who oversees CAP's work on LGBTQ populations. “This is not the time we want people to avoid seeking care and treatment.”

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