The Department of Health and Human Services has finally dropped a long-awaited but still very worrying proposed rule to strip transgender people of discrimination protections under the Affordable Care Act.
It’s all part of the Trump administration’s larger war on the trans community — with efforts to bar trans people from public life and restrict access to services. Many of the attacks treat this as a “religious freedom” issue, arguing people should have the right to discriminate if serving trans people is against their personal (Christian) beliefs.
It all starts with Section 1557 of the Affordable Care Act, which bans discrimination on the basis of sex. The Obama administration interpreted that to include gender, which opened up huge opportunities for the trans community.
For example, insurers no longer could deny coverage to people just because they were trans, which improved access to transition care. Moreover, when people received health care services, they had legal options if they faced discrimination — and not just in the case of transgender care. Any health care — from a broken arm to EMT services at a car accident — fell under this anti-discrimination umbrella.
Health care discrimination — including harassment, sexual assault, refusal of services and much more — is a consistent problem in the trans community. The broad interpretation of Section 1557 changed that, arguing trans people should be treated like human beings in medical settings. And given that the community has a higher incidence of a variety of problems paired with a need for free or low-cost health services because of a persistent wage gap, this was a substantial civil rights gain.
Now, the Trump administration wants to roll it all back, saying this applies to sex only, not gender. This comes on the heels of a proposal to allow homeless shelters to discriminate against trans people, the trans military ban and other measures designed to target the trans community.
The insistence that this is necessary for faith-based reasons is especially galling, as the Trump administration has aggressively defended the right to discriminate for conservative Christians while allowing members of other faiths to face harassment, discrimination and attacks. While mosques and synagogues have become the sites of fires and violence, it’s hard to see how ensuring that Christian hospitals can leave trans people to bleed to death in the ER is an important priority.
Health and Human Services has made the text of the proposed rule available for review, but it has not yet been published in the Federal Register. It’s a long document, and attorneys are hard at work breaking it down into digestible components and developing commenting tool kits for organizations, including the National Center for Transgender Equality.
Take the time to read it, and use these tools to submit an effective comment to the Federal Register. Effective comments are responsive, meaning they speak to the actual content of the proposed rule (and yes it’s fine to pick out one section — you don’t have to talk about the whole proposal). And they’re original (at least two-thirds should be in your own words), ensuring that agencies have to read them instead of throwing them out.
They should also include something for the agency to respond to. Various commenters will likely attack the agency’s standing, the legal arguments and the preemptive responses to various community concerns. You don’t need to be a legal eagle. But try to pick out a component of the rule to ask some hard questions. You may wish to think about factors, such as existing health care discrimination statistics for the trans community; how unequal access to health care can drive social inequality, as well as government costs; and the implications of “right to discriminate” policies.
Rule-making like this is complicated and confusing by design. The Trump administration wants to make it hard to stand up for transgender Americans. But it’s critical to participate in this commenting process. HHS has an obligation to respond to comments, and if it fails to do so sufficiently, it could be grounds for future suit.
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