The Trump administration has formally proposed to revise Obama-era civil rights for transgender people in the nation’s health care system, eliminating “gender identity” as a factor in health care and leaning government policy toward recognizing only immutable characteristics of sex at birth.
The Department of Health and Human Services published its proposed regulation Friday, which eliminates gender identity protections created by a 2016 regulation inserted by the Obama administration that redefined discrimination “on the basis of sex” to include gender identity.
The Obama administration adopted the rule in question in 2016 to carry out a civil rights provision of the Affordable Care Act, known as Section 1557 creating these gender identity protections. That provision prohibits discrimination based on race, color, national origin, sex, age or disability in “any health program or activity” that receives federal financial assistance. The 2016 rule further defined the term “gender identity” to mean a person’s “internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.”
In December 2016, a federal judge in Fort Worth, Texas, ruled that “Congress did not understand ‘sex’ to include ‘gender identity,’” and the Trump administration, rather than appealing, has said it will bring the civil rights provision of the Affordable Care Act into compliance.
“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” said Roger Severino, the director of the Office for Civil Rights at the department in a statement announcing the new rules on Friday.
“The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives. The proposed rule would accomplish both goals,” he said.
Transgender rights groups reacted with alarm.
“The Trump-Pence administration’s latest attack threatens to undermine crucial nondiscrimination protections for LGBTQ people provided for under the Affordable Care Act,” said David Stacy, director of government affairs for the Human Rights Campaign, in a statement. “The administration puts LGBTQ people at greater risk of being denied necessary and appropriate health care solely based on their sexual orientation or gender identity.”
Last year, Mr. Severino pushed for a legal definition of sex Title IX, the federal civil rights law that bans gender discrimination in education programs that receive government financial assistance.
“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the department proposed in the memo, which was obtained by The New York Times. “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”