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Transgender Health Protection Rollback Draws Lawsuit Threats (1)

May 24, 2019, 1:41 PMUpdated: May 24, 2019, 6:11 PM

Transgender groups will be on familiar ground when they take the Trump administration to court over a move advocates say opens the door to discrimination.

The Department of Health and Human Services May 24 unveiled a proposal that would roll back an Obama-era policy prohibiting discrimination against transgender people and women seeking abortions after a judge stopped it from from taking effect.

At least one organization, Lambda Legal, an LGBT rights litigation group, said it would file a lawsuit if that proposed rule is completed.

“We’re all ready to continue this fight,” M. Dru Levasseur, senior attorney and transgender rights project director for Lambda Legal, said prior to the proposal. “If the Trump administration wants to up the ante, we will definitely see them in court.”

The proposed changes to the existing federal rule come in response to a federal judge’s assertion that the Obama-era regulation’s protections for gender identity and abortion aren’t consistent with federal law, HHS Office for Civil Rights Director Roger Severino said on a call with press May 24.

“We are bound to respect the text of the laws that Congress has entrusted to us for enforcement,” Severino said.

The proposal immediately drew criticism from Democrats in Congress.

Law on Their Side

Transgender advocates believe they have the law on their side. For about two decades, most federal courts have ruled that sex discrimination laws, including the Affordable Care Act, protect transgender people from discrimination, Andy Marra, executive director of the Transgender Legal Defense & Education Fund, said.

The proposed regulation would give health-care providers, insurance companies, doctors, and nurses an invitation to pick and choose who they treat, Marra said. That could prevent a transgender person from getting timely access to lifesaving care.

Transgender people already face barriers to care. About a quarter of the 28,000 transgender individuals who responded to a 2015 survey by National Center for Transgender Equality said they didn’t see a doctor when they needed care because they feared discrimination.

However, conservative groups argue the issue is more complicated and public sentiments aren’t settled and need to be taken into consideration.

“We don’t need to penalize one side of these disagreements as discriminators,” Ryan Anderson, a senior research fellow at the conservative-leaning Heritage Foundation, said.

The National Center for Transgender Equality recently asked Severino in a letter to delay rulemaking until the U.S. Supreme Court has a chance to weigh a similar question next term.

“Regardless what position this hostile administration has, transgender people are here to stay,” Levasseur said. “They cannot be defined out of the law or out of existence.”

Lawmakers Fire Back

Top House Democrats called the proposal inhumane.

The move by the Trump administration is another attack on the ACA’s patient protections, Reps. Frank Pallone (D-N.J.), Richard Neal (D-Mass.), and Bobby Scott (D-Va.) said in a joint statement. They chair the House Energy and Commerce, Ways and Means, and Education and Labor Committees, respectively.

“The fact is that the ACA remains the law of the land and its protections against sex and gender discrimination by health care providers and insurers remain firmly in place,” the lawmakers said. “Democrats will continue to fight this stigmatizing proposal, put patients first, and protect the rights of all Americans, including transgender individuals and women from discrimination.”

The proposal comes a week after the House passed legislation that would prohibit sexual orientation and gender identity bias in the workplace.

Senate Democrats were also quick to decry the rule.

The proposal is “yet another blatantly harmful, discriminatory, and wrong policy from the Trump Administration,” Sen. Patty Murray (D-Wash.), ranking member of the Health, Education, Labor and Pensions Committee, said.

“Patients don’t need the ideological judgment of President Trump, Vice President Pence, or anyone else for that matter—they need to know that when they seek the health care they need, they won’t be turned away because of who they are,” Murray said in a statement.

(Updated with additional comments from lawmakers.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Andrew Childers at achilders@bloomberglaw.com

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