Who could oppose the idea of ensuring patients are never discriminated against by hospitals because of their sexual orientation, their gender identity, or their gender expression? Sadly, the answer is federal health and justice policymakers. High-ranking officials are systematically tearing out even the humblest measures aimed at upholding the basic American values of fairness and equality.

The New York Times reported Saturday that disturbing new rules are coming out of the Department of Health and Human Services, following approval by the U.S. Department of Justice.

“The Trump administration says it plans to roll back a rule issued by President Barack Obama that prevents doctors, hospitals and health insurance companies from discriminating against transgender people,” writes Times correspondent Robert Pear. “Advocates said the change could jeopardize the significant gains that transgender people have seen in access to medical care, including gender reassignment procedures — treatments for which many insurers denied coverage in the past.”

Some of America’s foremost health-policy experts and the country’s most engaged journalists covering health care — not least among them Politico reporters Jennifer Haberkorn and Dan Diamond as well as the Fenway Institute’s health policy director, Dr. Sean Cahill — had all but predicted Saturday’s dire news months ago.

A casual survey of reporting and research conducted just during the past four months by those three respected authorities reveals a raft of rightfully alarming headlines, including "HHS Strips Lesbian, Bisexual Health Content from Women’s Health Website," "Trump Administration Dismantles LGBT-Friendly Policies," and "LGBT Community and People with HIV have Much to Lose in Health Debate."

An extensive review of the past year in the current administration’s attacks on LGBTQ health care was recently published by the Fenway Institute under the title "One Year in, Trump Administration Amasses Striking Anti-LGBT Record."

But Saturday’s NYT article pointed out how the current administration has not only declined to fight back against a temporary ruling by a federal judge in Texas that essentially said the Obama administration misunderstood Congress’s intent regarding the prohibition of sex discrimination by hospitals and other health care entities accepting federal monies (virtually all of them, by the way). But it has also written new rules to honor Judge Reed O’Connor’s belief that in the Affordable Care Act’s antidiscrimination provisions, Congress specifically intended gender to be a binary construct.

It’s worth noting that Judge O’Connor’s stay need not have been the final ruling. Clearly, Attorney General Jeff Sessions, a longtime LGBTQ rights foe, jumped on the temporary ruling as an excuse to undo pro-equality regulations at HHS, making the department more cruel, unhealthful, and potentially deadly to transgender people.

It’s also worth noting that the flimsy excuse Sessions’s DOJ has used was a ruling by a judge about whom, writing at Law.com, Miriam Rozen said, “Perhaps no federal judge has ruled more often to stall the recent pace of acceptance of the LGBTQ community than O'Connor.”

Why Stop Collecting LGBTQ Health Data?

But the current administration had already begun taking apart the very foundations upon which current and future health care policies could have created more equitable and effective health care in this country.

We recently learned just how deadly it can be to allow ourselves to be blindfolded by one-sided political agendas regarding data. Thanks to the effectiveness of the gun lobby, i.e., the National Rifle Association, the Centers for Disease Control and Prevention has been prevented from gathering data about gun violence as a public health issue. Now, with the March for Our Lives and #NeverAgain movements gaining on the NRA’s influence, new light is being shone on the dearth of such information.

We know that in the 21st century, deeply studied data and widely gathered information form the bedrock for developing effective policy and programs. We also know that finding a way to provide access to quality health care has been one of our nation’s most complex and vexing problems.

So why would the U.S. Department of Health and Human Services be working so hard to stop gathering data about LGBTQ patients? Is the federal government intentionally putting on blindfolds regarding LGBTQ health care? As the Fenway Institute and Dr. Cahill have uncovered, that is exactly what’s happening.

“The government is rolling back essential tools that can determine whether supportive services are reaching all elders and disabled individuals,” Fenway’s Cahill and other authors write in their report about one year of Trump administration attacks on LGBTQ health care.

The decision by the Administration on Aging, a unit of HHS, to remove questions that would include LGBTQ seniors as part of an important annual report about older Americans in independent living facilities is troubling.

“Collecting [sexual orientation and gender identity] data in disability services would be important, as research has shown higher rates of disability among the LGBT population compared to the rest of the general population,” reads the Fenway Institute report.

Taking Action

The good news is that journalists, activists, researchers and regular people who care about health care, equality, and LGBTQ people are not sitting out the current attacks. In fact, Dr. Cahill will share some of his invaluable research and insights about the subject next week in Southern California. 

A public discussion headlined by Dr. Cahill happens May 1 from 11:30 a.m. to 2:30 p.m. in Costa Mesa, Calif., as part of the panel series LGBTs in the News With Thom Senzee. As founder and moderator of America’s longest-running live-discussion panel series, I urge you to join us. Presented by Radiant Health Centers and with support from the SAG-AFTRA LGBT Actors Committee, Dr. Bronner’s, Mark Wood Entertainment, and The Rage Monthly, the event is free and includes lunch. RSVPs are required and can be made at LGBTSInTheNews.com.

Topics such as LGBTQ aging, transgender health, PrEP and PrEP bias, and a host of other LGBTQ health matters will be discussed. The engagement title, "LGBTQ Community Health: Resolving Disparities, Overcoming Barriers" requires a slate of panelists with unique insights and authoritative perspectives.

Joining Dr. Cahill will be Dr. Cordula Dick-Muehlke, a consultant, University of California, Irvine, faculty member, and leading expert on dementia care with a special focus on LGBTQ aging; Dr. R. Austin Nation, Ph.D., RN, PHNassistant professor at California State University, Fullerton, School of Nursing; plus Dr. Michael L. Krychman, MD, a noted obstetrician-gynecologist, leading author, and executive medical director at the Southern California Center for Sexual Health and Survivorship. Visit LGBTSInTheNews.com for more information.

WASHINGTON — The Trump administration says it plans to roll back a rule issued by President Barack Obama that prevents doctors, hospitals and health insurance companies from discriminating against transgender people.

Advocates said the change could jeopardize the significant gains that transgender people have seen in access to medical care, including gender reassignment procedures — treatments for which many insurers denied coverage in the past.

The rule was adopted in 2016 to carry out a major civil rights law embedded in the Affordable Care Act. The law prohibits discrimination based on race, color, national origin, sex, age or disability in “any health program or activity” that receives federal financial assistance.

The Obama administration said the rule covered “almost all practicing physicians in the United States” because they accept some form of federal remuneration or reimbursement. It applies, for example, to hospitals that accept Medicare and doctors who receive Medicaid payments, as well as to insurers that participate in health insurance marketplaces.

Trump administration officials said they believed they had to modify the rule because a federal judge in Texas had found that parts of it were unlawful.

“The Department of Health and Human Services has submitted a draft of a proposed rule” to the White House for clearance, the Justice Department told the judge this past week. And the White House confirmed that it was reviewing the proposed rule on “nondiscrimination in health programs.”

The Trump administration has been scaling back protections for transgender people on several fronts. Attorney General Jeff Sessions, reversing an Obama administration policy, said the main federal job discrimination law “does not encompass discrimination based on gender identity per se.”

Mr. Trump’s effort to bar transgender people from serving in the military is tied up in several federal courts. The Education Department has rescinded Obama administration guidelines on how schools should accommodate transgender students.

The existing health care rule adopted two years ago says that sex discrimination — clearly forbidden by the Affordable Care Act — includes discrimination based on “gender identity” and “stereotypical notions” about how men or women should present themselves or behave.

Under the existing rule, health insurers cannot place arbitrary limits or restrictions on health services that help a person transition from one gender to another. These services may include counseling, psychotherapy, hormone therapy and a variety of surgical treatments.

In the past, many insurers, as they denied coverage for such treatments, cited what they called the cosmetic or experimental nature of the procedures. The Obama administration said that view was “outdated and not based on current standards of care.”

But eight states, a network of Roman Catholic hospitals and the Christian Medical and Dental Associations, representing 19,000 doctors, challenged the Obama-era rule. A federal district judge in Texas temporarily stopped enforcement of the protections for transgender patients, saying that Congress had outlawed discrimination based on sex — “the biological differences between males and females” — but not transgender status.

“Congress did not understand ‘sex’ to include ‘gender identity, ’” said the judge, Reed O’Connor, in Fort Worth. In the Affordable Care Act, he said, Congress “adopted the binary definition of sex.”

But Jennifer C. Pizer, the law and policy director at Lambda Legal, a gay rights group, said, “That is an excruciatingly narrow and legally incorrect definition of the term ‘sex’ that would jeopardize legal protections for lesbian, gay, bisexual and transgender people.”

Doctors, hospitals and states in the Texas case also objected to a provision of the federal rule that they said put pressure on them to provide or pay for abortion-related services. The judge blocked this provision too.

Roger Severino, the director of the Office for Civil Rights at the Department of Health and Human Services, said it was necessary to re-examine the rule.

"The court held that the regulation’s coverage of gender identity and termination of pregnancy was contrary to law and exceeded statutory authority, and that the rule’s harm was felt by health care providers in states across the country, so a nationwide injunction was appropriate,” Mr. Severino said in an interview. “The court order is binding on H.H.S., and we are abiding by it.”

Jocelyn Samuels, who was the director of the civil rights office under Mr. Obama and an architect of the rule, said, “If the Trump administration rescinds the protections against sex stereotyping and gender identity discrimination, the effect will be potentially devastating not just for the trans community, but for any other patients who are gender-nonconforming, including lesbian and gay individuals.”

Trump administration officials told the federal court in Texas that they intended to modify the Obama-era rule, but did not say exactly how.

In recent years, some courts have held that federal sex discrimination laws do apply to discrimination against transgender people, as the Obama administration said.

Judge Susan Richard Nelson of the Federal District Court in Minnesota has found that the Affordable Care Act protects people who “allege discrimination based on ‘gender identity’” — a person’s internal sense of gender, which may differ from the sex listed on the person’s birth certificate.

Barry Ted Moskowitz, the chief judge of the Federal District Court in San Diego, has ruled that “discrimination on the basis of transgender identity is discrimination on the basis of sex,” prohibited by the Affordable Care Act.

The rule being drafted by the Trump administration puts federal officials at odds with many medical experts. Dr. James L. Madara, the chief executive of the American Medical Association, urged the administration to preserve the existing protections for transgender people.

The A.M.A. “stands behind” those protections and “opposes any modifications to the rule that would jeopardize the health and well-being of vulnerable populations,” he said in a letter to Mr. Severino.

Harper Jean Tobin, the policy director at the National Center for Transgender Equality, an advocacy group, said that the 2010 law and the Obama administration rule had significantly increased access to health care and coverage for transgender people. But in surveys, she said, transgender patients still report “mistreatment, refusals of care and harassment in medical settings.”

Judge O’Connor said the rule probably violated the Religious Freedom Restoration Act because it did not include an exemption for health care providers who had religious objections to providing gender transitions or abortions.

Trump administration officials share that concern. The administration has been zealous in trying to protect health care workers who object to performing procedures like abortion and gender reassignment surgery because of their religious beliefs or moral convictions.

The US Coast Guard is “committed” to allowing transgender people to serve unless they are explicitly barred, its leader has said.

The decision was reportedly made without consultation with military chiefs or legal experts, and the policy has been repeatedly smacked down in the courts.

Last month, Trump moved to ban most trans servicepeople by stating that “transgender persons with a history or diagnosis of gender dysphoria… are disqualified from military service except under certain limited circumstances.”

But Commandant Admiral Paul Zukunft told lawmakers on Tuesday that he would not stop any trans person from serving until he was ordered to do so, Politico has reported.

“We are certainly committed to their continued service in the United States Coast Guard,” he said to a House Appropriations Homeland Security Subcommittee.

“We will make sure that there is one policy for all service members.”

At least 17 of the Coast Guard’s 40,000 members on active duty identify as trans, according to the commandant, who said that figure included one of his personal staff.

Zukunft said that he was talking to senior figures from all five of the other branches of the military about how to respond to Trump’s ongoing attempts to institute a trans ban.

The Hawaii House of Representatives has approved a bill to ban conversion therapy, which attempts to change a person’s sexual orientation, on youth.

House lawmakers added amendments to the bill to clarify its intent — that banning “sexual orientation change efforts” include attempts to alter a person’s gender identity, gender expression, or gender-nonconforming behaviors.

The amendments also specifically identify which therapists, counselors, or health professionals are prohibited from engaging in conversion therapy. For example, if a person is a licensed therapist or mental health professional but is acting in a role as a spiritual or religious advisor — and not in a professional capacity — they will not be threatened with discipline or the loss of their license.

The bill now heads to conference, where House and Senate lawmakers will hammer out the differences between the bills. Once both chambers agree on a single version, and vote to approve the changes, Gov. David Ige, a Democrat, is expected to sign the bill into law.

“So-called ‘conversion therapy’ is nothing short of child abuse with life-threatening consequences for countless LGBTQ youth,” JoDee Winterhof, the senior vice president for policy and political affairs at the Human Rights Campaign, said in a statement. “It is time Hawaii join the growing number of states who are enacting laws to protect LGBTQ youth from this dangerous and discredited practice.”

Eleven states and the District of Columbia currently have statewide laws or regulations that protect youth from being subjected to conversion therapy against their will. Maryland is expected to become the 12th state banning the practice once Gov. Larry Hogan (R) signs a ban into law there. Several municipalities in states without bans have also banned the practice of conversion therapy.

A federal judge in Texas has ruled that workers can't be discriminated against based on their gender identity or sexual orientation.

Judge Lee Rosenthal — the chief judge in the Houston-based Southern District Court of Texas — ruled that workers are protected from such discrimination under the federal employment law that protects workers based on their gender, The Dallas Morning News reported.

The decision came during a case in which a woman claimed she was not hired by Phillips 66, an energy company, because she was transgender.

Rosenthal ruled that the woman, Nicole Wittmer, couldn't prove that she wasn't hired because she was transgender. But she also ruled that if Wittmer could prove she was discriminated against due to her gender identity, she would have cause to sue under federal law.

Wittmer's lawyer told The Dallas Morning News that while they were disappointed the ruling did not go in their favor, the decision that a worker could sue under federal law for discrimination because of gender identity was a big deal.

"The silver lining here is it has helped to define the landscape for people who have been discriminated [against] in the workplace due to their transgender status," lawyer Alfonso Kennard Jr. said Monday. "This ruling is earth-shattering — in a good way."

The decision marked the first time a federal judge in Texas has said that LGBT workers cannot be discriminated against under Title VII, which bars sex discrimination in the workplace, according to The Dallas Morning News.

"Within the last year, several circuits have expanded Title VII protection to include discrimination based on transgender status and sexual orientation," Rosenthal wrote. "Although the Fifth Circuit has not yet addressed the issue, these very recent circuit cases are persuasive. ... The court assumes that Wittmer's status as a transgender woman places her under the protections of Title VII."

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