Physician Groups Decry Proposal to Reverse Federal Transgender Protections

Alicia Ault

May 24, 2019

More than two dozen physician and healthcare organizations are objecting to a proposal by the Trump administration to reverse protections for transgender individuals seeking healthcare.

"We oppose these efforts and express our strong support for providing the strongest non-discrimination protections available for LGBTQ people," the thirty-one groups said in a letter to Health and Human Services (HHS) Secretary Alex Azar issued shortly after the HHS Office for Civil Rights unveiled its proposal on May 24.

The groups — which include the American Academy of Pediatrics, the American College of Physicians (ACP), the American Medical Association (AMA), the American Psychiatric Association, the American Psychological Association, the Endocrine Society, and the Society for Adolescent Health and Medicine, among others — urged HHS to reconsider the proposal.

They noted that LGBTQ individuals are already more likely to delay medical care than others, adding that a recent survey of transgender people found that one in four did not see a doctor when needed because of fears of being mistreated.

The proposal comes on the heels of a Trump administration rule issued May 3 allowing health providers to opt out of procedures that violate their personal or religious beliefs. Twenty-three states and localities have sued to overturn the rule.

Conforming With the Law

In a call with reporters, Roger Severino, director of HHS Office for Civil Rights, said that the administration's proposal is a response to two court actions.

Since January 2017, the US District Court for the Northern District of Texas has blocked HHS from prohibiting discrimination on the basis of gender identity or termination of pregnancy, and a North Dakota federal court agreed.

In both cases, the plaintiffs are challenging a 2016 Obama Administration rule that said that individuals who are transgender or who have had abortions could not be discriminated against under federal laws barring discrimination on the basis of sex.

The Trump administration's Department of Justice has disagreed and sided with the plaintiffs in the cases, saying that "sex" does not refer to gender identity under federal law.

"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 in a statement.

"We are bound to respect the text of the laws that Congress has entrusted to us for enforcement, and that is what this rule will do," Severino told reporters. He said that the rule — if made final — would basically codify the current injunctions.

When asked what steps the administration would take to protect the health of transgender individuals, Severino said, "We believe in the inherent human dignity of all people," and added that the rule would ensure that healthcare is available for all.

The rule "does not tell people how to practice medicine," Severino added.

"We're committed to making sure that health care and human services are provided fairly," he said.

Discrimination Can Kill

Healthcare providers and transgender advocates were not convinced, however, and many noted that discrimination has deadly consequences for many LGBTQ individuals.

"The proposed rule specifically would eliminate federal rules requiring non-discrimination against transgender persons, weaken requirements that health care clinics accommodate patients with disabilities and with limited English proficiency, and allow clinicians with religious objections to broadly discriminate against women seeking reproductive services," said Robert McLean, MD, FACP, president of the ACP in a statement.

"Discrimination against patients, including those who identify as lesbian, gay, bisexual, and transgender (LGBT), creates social stigma that has been linked to negative physical and mental health outcomes, including anxiety, suicide, and substance or alcohol abuse," he said, adding that the ACP urged the administration to withdraw the proposal.

Patrice A. Harris, MD, president-elect of the AMA, said in a statement that the organization "strongly believes that discrimination on the basis of sex includes discrimination on the basis of gender identity and sexual orientation."

The AMA also "does not condone discrimination based on whether a woman has had an abortion," she said.

The AMA aims to submit comments to HHS "emphasizing that medicine is a healing profession," Harris said.

The HIV Medicine Association, which also signed on to the group letter to Azar, noted in a statement that the proposal — along with Trump administration proposals to weaken protections for transgender individuals seeking housing — "are discriminatory, destructive and pose significant, threats to the president's stated goal of ending HIV as an epidemic in the US."

The group added, "Codifying and promoting stigmatizing perceptions that remain among the most formidable challenges to progress against the HIV epidemic in the US, the proposed rules also will deny transgender people critical services essential to their health and survival."

Margaret A. Murray, chief executive officer of the Association for Community Affiliated Plans, which represents safety-net providers, said in a statement, "It's difficult to see what problems these revisions solve," adding that, "Turning the clock back and allowing health care entities to discriminate on the basis of a person's gender identification, or whether someone has previously sought an abortion, will lead to worse health outcomes and higher health care costs."

Mara Keisling, executive director for the National Center for Transgender Equality, said in a statement that the proposal would "abandon 2 million Americans who already face significant barriers to accessing adequate and life-saving health care."

Keisling added, "This is not about free health care or special treatment. It's about the right of every American to be treated with dignity when they walk into an emergency room, meet a new doctor, or find the right insurance plan."

The public can comment on the rule for 60 days. The rule would also exempt short-term, limited-duration health plans — advanced by the Trump administration as an alternative to the Affordable Care Act (ACA) marketplace plans — from the ACA's antidiscrimination requirements.

It would also lift a requirement that explanation of benefits forms include the offer to translate the forms into at least 15 different languages. That was proving too costly to insurers, Severino said.

The administration will publish a final rule after weighing the public comments, Severino said.

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