By Andrew J. Sciascia, WESTERN JOURNAL
The Trump administration moved to revoke an Obama-era rule that affords anti-discrimination protections to transgender individuals under the Affordable Care Act.
The proposed regulation, which the Health and Human Services Department released Friday, would exclude “gender identity” from being read into current sections of federal law that maintain that healthcare providers may not discriminate because of one’s sex.
“In 2016, HHS issued a new rule that redefined discrimination ‘on the basis of sex’ to include termination of pregnancy and gender identity, which it defined as one’s internal sense of being ‘male, female, neither, or a combination of male and female,’” HHS’ Friday press release read.
However, according to HHS Office of Civil Rights Director Roger Severino, court injunctions relating to the Obama-era rule have led the department to halt its enforcement in recent years.
With those injunctions in mind, the department determined it was likely time to “conform” its definition of sex with that of the Congress and the courts.
“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” Severino said.
But this explanation does not sit well with transgender activists. Many such organizations believe this was a calculated move to strip protections from transgender and LGBT individuals, something they claim has been par for the course under the Trump administration.
Citing the administration’s previous attempts to alter Obama-era rules pertaining to transgender individuals in the military or public housing, these groups say the administration has attempted to ignore anti-discrimination laws from the outset.
“The actions today are part and parcel of this administration’s efforts to erase LGBTQ people from federal regulations and to undermine nondiscrimination protections across the board,” Omar Gonzalez-Pagan, a senior health care attorney with LGBT civil rights group Lambda Legal, told Fox News.
In fact, some have argued that the new rule flies in the face of previous court cases that were ruled opposite the injunctions HHS received — favoring “gender identity” as a lawful component of the definition of sex.
“Courts have been clear for decades that prohibitions on sex discrimination encompass discrimination against transgender individuals,” Louise Melling, deputy legal director with the American Civil Liberties Union, told Fox.
Melling said her organization has plans to fight the new rule during the mandatory 60-day comment period. And she would not be surprised if there were court challenges brought in during that time.
Regardless, Severino says the goal of the rule is to keep HHS regulations in accordance with federal law, and that nothing will be lost in the way of enforcing current and future civil rights laws that prevent discrimination.
“We are committed to full enforcement of civil rights laws before, during, and after any rulemaking,” Severino said in the release. “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.”
And Severino said the new anti-discrimination regulation has other goals — one of which is that it will try to make the health care system cheaper and more efficient.
HHS indicates in its news release that under original 2016 rules, providers covered have reported that they waste millions of dollars each year sending required “tagline notices” to inform patients they can have “significant documents” translated for convenience.
Both the department and the providers have found that the vast majority of these expensive notices go to English speakers, with few recipients responding to have their documents translated into one of the 15 languages available.
The newly proposed rule would remove this provision as well, providing translation notices only to those who require or request them.
Severino said it will save more than $3 billion in just five years.
“The American people are tired of unnecessary regulations getting in the way of access to affordable healthcare, and today’s proposal would remove $3.6 billion in regulatory burdens that are ultimately being passed down to patients,” Severino said.
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