What Supreme Court? Trump’s HHS pushes LGBT health rollback

The Trump administration rule would overturn Obama-era sex discrimination protections for transgender people in health care.

An LGBTQ pride flag is pictured in Center City.

An LGBTQ pride flag is pictured in Philadelphia. (Samantha Madera/City of Philadelphia)

The Trump administration Friday moved forward with a rule that rolls back health care protections for transgender people, even as the Supreme Court barred sex discrimination against LGBT individuals on the job.

The rule from the Department of Health and Human Services was published in the Federal Register, the official record of the executive branch, with an effective date of Aug. 18. That will set off a barrage of lawsuits from gay rights and women’s groups. It also signals to religious and social conservatives in President Donald Trump’s political base that the administration remains committed to their causes as the president pursues his reelection.

The Trump administration rule would overturn Obama-era sex discrimination protections for transgender people in health care.

Strikingly similar to the underlying issues in the job discrimination case before the Supreme Court, the Trump health care rule rests on the idea that sex is determined by biology. The Obama version relied on a broader understanding shaped by a person’s inner sense of being male, female, neither, or a combination.

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Writing for the majority in this week’s 6-3 decision, Justice Neil Gorsuch said, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.

“Sex plays a necessary and undisguisable role in the decision, exactly what (civil rights law) forbids,” wrote Gorsuch, who was nominated to the court by Trump.

The president thundered back in a tweet: “These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives.”

In the HHS rule, the department’s Office for Civil Rights anticipated a Supreme Court ruling on job discrimination “will likely have ramifications” for its health discrimination rule.

But health care is different, HHS argued. “The binary biological character of sex (which is ultimately grounded in genetics) takes on special importance in the health context,” administration lawyers wrote. “Those implications might not be fully addressed by future (job discrimination) rulings even if courts were to deem the categories of sexual orientation or gender identity to be encompassed by the prohibition on sex discrimination in (civil rights law).”

Cornell University constitutional law scholar Michael Dorf says that doesn’t sound like a persuasive argument to him.

“I don’t think it works very well,” said Dorf. “In Justice Gorsuch’s opinion he’s not saying the word ‘sex’ is ambiguous. He’s saying that when you do all the reasoning, it’s clear that ‘sex’ includes sexual orientation and gender identity.”

Civil rights laws on employment and health care may be different in a technical sense, said Dorf, but “it seems to be a very short distance to say (the Supreme Court ruling) also applies” to sex discrimination in health care.

Not so fast, said Gregory Baylor, an attorney for the religious liberty group Alliance Defending Freedom. “Biological sex matters in many health care settings in a way that it doesn’t matter in many employment decisions,” Baylor said. He cited the shortcomings of drug trials that use male patients but not women, when there can be differences in how medications affect both genders.

But gay rights and women’s groups say their arguments against the health care rule have clearly been strengthened by the Supreme Court.

“The decision puts the (HHS) rule on even shakier ground than it ever was,” said Omar Gonzalez-Pagan, a lawyer specializing in health care with the LGBTQ civil rights group Lamba Legal.

Michelle Banker, an attorney for the National Women’s Law Center, said the administration’s timing raises process questions that could later become important in a court challenge. It was only last week HHS announced it had finalized the rule.

“Agencies are required to make reasoned, rational decisions when they make policy,” said Banker. “The Supreme Court just weighed in and said that the legal interpretation they are relying on is wrong, and they have not grappled with that.”

The Obama-era rule was intended to carry out anti-discrimination provisions in former President Barack Obama’s signature health care law, which included a provision that barred sex discrimination in health care. The Trump administration says its predecessor went beyond what Congress authorized in protecting gender identity as well as biological gender.

Another provision of the Obama rule bars discrimination in health care against women on grounds of having or not having abortions. The Trump rule overturns that as well. Baylor said there’s nothing in the Supreme Court decision that would affect the Trump administration’s decision.

HHS rejects charges by Trump administration critics that it’s opening the way for discrimination.

“HHS respects the dignity of every human being,” said Roger Severino, head of the department’s civil rights office. “We vigorously protect and enforce the civil rights of all to the fullest extent permitted by our laws as passed by Congress.”

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