Trump Administration's Proposed HHS Rule Would Redefine What 'Sex' Means

The Health and Human Services Department has proposed to end Obama-era rules that protect transgender people from discrimination in health care. That could impact the Trump administration's plan to fight HIV.

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The Trump administration today announced plans to roll back protections for transgender people in health care. The announcement came from the Office of Civil Rights under Health and Human Services, the agency in charge of fielding complaints of discrimination. NPR's Selena Simmons-Duffin reports.

SELENA SIMMONS-DUFFIN, BYLINE: So the big question here is what does sex mean? Jocelyn Samuels used to run the Office for Civil Rights under President Obama. She says at issue here is Section 1557, the nondiscrimination provision of the Affordable Care Act.

JOCELYN SAMUELS: It prohibits discrimination in health programs and activities that are funded by the federal government based on race, national origin, disability, age and, significantly, sex.

SIMMONS-DUFFIN: In 2016, Samuels' agency issued guidance that sex included gender identity, defined as one's internal sense of being male, female, neither or a combination of male and female. Today?

ROGER SEVERINO: We're going back to the plain meaning of those terms, which is based on biological sex.

SIMMONS-DUFFIN: That's Roger Severino, who took over the Office for Civil Rights from Samuels. The office's enforcement of the gender language has been on hold, anyway, since 2016 because of two court injunctions. But Samuels says people who've felt they've been discriminated against on the basis of gender could still sue their doctors, for instance, and let the judge decide if they were protected. All of this is quite legal and technical and hard to follow. What does it mean in real life? Severino was asked on the press call this morning, what if someone who's transgender is refused care at the emergency room?

SEVERINO: I have not heard of such a hypothetical actually happening in real life.

SIMMONS-DUFFIN: That sigh is the response of Mari Brighe. She's a transgender woman and freelance writer in Detroit.

MARI BRIGHE: I had one particular emergency room visit where, once I disclosed that I was trans, not a single health care provider touched me for the duration of my visit, which was another four hours.

SIMMONS-DUFFIN: Brighe says it's not just about emergencies, either. She has Crohn's disease, a chronic condition that requires constant management.

BRIGHE: For about two years, I didn't have insurance that allowed me to access, you know, a hospital or physician system that I knew to be trans-friendly or, you know, trans-accepting. And I basically didn't go to the doctor for two straight years because I was terrified.

SIMMONS-DUFFIN: Brighe says, as a result, her health suffered. Advocates fear that is what may happen more now that the federal government has announced this change. Jocelyn Samuels now runs The Williams Institute at UCLA law school, a policy think tank on LGBT issues. They estimate today's announcement will have the biggest impact on 780,000 people in states that don't offer their own protections for transgender people.

SAMUELS: The administration has taken the position that there is no federal remedy for gender identity discrimination in employment, in education, in homeless shelters, and now has proposed to take that position in the health care context as well.

SIMMONS-DUFFIN: Those who cheered today's news focused on what it means for health care providers. Luke Goodrich is vice president of the Becket Fund for Religious Liberty.

LUKE GOODRICH: This proposal is a step in the right direction because it protects the doctor-patient relationship and ensures that no doctor will be forced to provide medical procedures in violation of his medical judgment and at risk of patients.

SIMMONS-DUFFIN: Procedures connected to gender transition, for instance. The public now has 60 days to submit comments. After that, the rule will be finalized and published in the Federal Register. Selena Simmons-Duffin, NPR News.

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