The U.S. Department of Health and Human Services proposed on Friday to reverse an Obamacare mandate that bars discrimination against transgender patients.
“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” Roger Severino, director of the Office for Civil Rights, said in a statement. “The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives.”
The HHS had issued a new rule in 2016 with regard to Section 1557 of the Affordable Care Act — which “prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities” — by extending the definition of “sex” to include “gender identity” and termination of a pregnancy.
A federal court issued an injunction against the new rule in January 2017 after several states and healthcare entities filed lawsuits, arguing that the mandate would force faith-based providers to perform sex change surgeries and other services that violate their beliefs.
While the injunction is still in effect today, the Trump administration is moving to roll back the 2016 provision.
Alliance Defending Freedom Legal Counsel Kellie Fiedorek praised the Trump administration for going back to the “plain meaning of the word ‘sex.’”
“Congress has consistently used the word ‘sex’ in laws like Title VII, Title IX, and the Affordable Care Act to mean a person’s biological sex as male or female,” Fiedorek said. “Replacing the objective concept of sex with subjective gender identity, as some courts and the prior administrative have tried to do, has far-reaching consequences, including for women’s sports, school locker rooms, and homeless women’s shelters.
“Confirming the clear meaning of sex as grounded in human biology ensures that women will continue to have equal opportunities in sports, school, and work, and it protects the privacy rights of all Americans.”
In 2018, the HHS unveiled the Conscience and Religious Freedom Division meant to defend the conscience rights of medical professionals who may hold moral or religious objections to things like abortions or gender reassignment surgery.
The HHS proposal comes days after the Department of Housing and Urban Development released a proposal that some argue would roll back an Obama-era policy barring discrimination against transgender persons at homeless shelters.
HUD’s proposed rule permits shelters that receive HUD funding “to consider a range of factors in making such determinations, including privacy, safety, practical concerns, religious beliefs, any relevant considerations under civil rights and nondiscrimination authorities, the individual’s sex as reflected in official government documents, as well as the gender which a person identifies with.”
While maintaining that the HUD is committed to protecting every person’s right to access its programs without discrimination, HUD Secretary Ben Carson said, “Our intention is to stop treating sex and self-identified gender as the same because I believe Washington shouldn’t be telling the rest of America how to determine whether someone is a man or a woman," as reported by The Hill.
In March 2018, Carson said his agency does not want to trample on the privacy rights of homeless persons and that they are taking a cautious approach in implementing protections for transgender people. He noted that some women have said that they are uncomfortable sharing showers and other private areas with members of the opposite biological sex.