HHS Urged to Wrap Transgender Care Into Abortion Privacy Plan

Human Rights Campaign, Planned Parenthood, and others are urging the Department of Health and Human Services to expand a proposal protecting reproductive health information from law enforcement to also shield information related to gender-affirming care.

If finalized, the proposed rule (RIN: 0945-AA20) would modify privacy standards for identifiable health information under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and stop health insurance plans, medical providers, and others from sharing protected health information connected to reproductive services obtained in states where they are legal.

The suggestions to expand the reach of the proposal come as tensions over reproductive services and LGBTQ rights flare across the country and the Biden administration looks for ways to respond.

About 20 state laws across the US limit gender-affirming care, though many have been blocked via legal challenges. In July, federal judges allowed bans on gender-affirming care for minors to go into effect in Kentucky and Tennessee while an appellate court battle plays out.

Psychological, social, behavioral, and medical interventions are all part of gender-affirming care, with the goal being to support a person’s gender identity, according to the Association of American Medical Colleges. Transgender advocates say the treatments are essential to their mental and physical well-being, but conservative lawmakers view them as potentially harmful.

“Right now, there is such an extreme attack that’s happening on the transgender community,” especially with punishing parents and health-care workers over gender-affirming care, said Michael Ulrich, a Boston University law professor. Expanding privacy protections to transgender treatment would bring it “into the fold with health care,” Ulrich said.

“Part of the problem with HIPAA before this is people thought it did a lot more than it does,” Ulrich said. “If we really want people to think of it as a health privacy law more broadly, all the more reason to bring in gender-affirming care.”

‘Judicial Danger Zone’

Privacy organizations, medical providers handling sensitive reproductive health information, and religious groups all urge the government to either scale back or widen the reach of its April plan. Lawmakers, state attorneys general, and advocacy groups have also commented on the proposed rule.

Those in favor of the proposed rule say it provides women with much needed protections for reproductive services after the US Supreme Court struck down the federal right to abortion in 2022’s Dobbs v. Jackson Women’s Health Organization.

Those against the rule view it as a breach of agency authority that would compromise state laws and stop law enforcement from collecting health information that could help with criminal investigations.

Lawrence Gostin, a Georgetown Law professor, said he has “no doubt” that the rule would be litigated if it comes to pass, with challenges including congressional authority for such rulemaking and how “very aggressive” rulings from the US Supreme Court on religious freedom factor in.

“‘This is squarely in the Supreme Court’s judicial danger zone,” he said.

Roger Severino, former director of the HHS Office for Civil Rights under former President Donald Trump, wrote that the proposal’s “poor draftsmanship and confusing structure” were ample to render an eventual rule “in violation of the Administrative Procedure Act, if not the Due Process Clause of the constitution.”

“With its many crossreferences, circular language, and internal contradictions, you cannot finalize this rule without violating the APA due to insufficient notice to covered entities as to exactly what conduct is prohibited and allowed,” Severino said.

Sens. Ted Cruz (Texas), J.D. Vance (Ohio) and 28 other GOP lawmakers criticized the HHS for attempting “to undermine enforcement of Federal and State abortion laws, simply because this administration disagrees” with Dobbs.

The Supreme Court “returned the power to regulate or prohibit abortion back to people and their elected representatives,” they wrote.

Transgender Care and Privacy

The Biden administration has framed the proposed rule as a response to Dobbs, emphasizing the importance of maintaining privacy.

Casey Pick, director of law and policy at the Trevor Project, a crisis support services group for LGBTQ people, said in an interview that “for very much the same reasons, I would like to see a rule coming out of HHS that protects the privacy of health information related to gender-affirming care, especially as we see these laws that are criminalizing the provision of this care in perhaps somebody’s home state.”

“If that individual leaves their state to go somewhere else to receive that care, that home state should not be able to drag back health information about what care an individual received somewhere else where that care was entirely legal,” Pick said.

Only 11% of transgender and nonbinary youth responding to a 2023 Trevor Project survey reported being on gender-affirming hormones, while 2% said they were using puberty blockers. That said, 65% of those on gender-affirming hormones reported being somewhat or very concerned about being unable to access care.

The Colorado Academy of Family Physicians wants the final rule to protect information about gender-affirming care, services helping gender diverse people, and sexual health care. And the Human Rights Campaign wants the information protections expanded to “transgender, gender nonconforming, and other gender minority individuals’ PHI related to gender-affirming care.”

The expansive attacks on gender-affirming care are similar to those on abortion, as well as “all sexual reproductive health” over the years, Laurel Sakai, Planned Parenthood Federation of America’s national director for public policy and government affairs, noted in an interview.

It’s “concerning to see politicians taking the same approaches” in going after people for gender-affirming care, Sakai said, who wrote a Planned Parenthood letter supporting an expansion of the proposed rule to transgender health care.

Planned Parenthood has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.