January 03, 2017
Lawsuits are mounting against the Obama administration’s new requirements for transgender care, but the issue might turn in challengers’ favor under the incoming Trump administration.
The Catholic Benefits Association, which represents more than 700 Catholic employers including many hospitals, filed a lawsuit in federal court Dec. 28 in an effort to get its members exempted from the rule. Five states and several other Christian healthcare providers are already fighting the requirement in another case against the rule. A Texas judge halted the rule over the weekend.
‘The doctor is essentially not able to use his or her best medical judgment, or counsel the patient about what their best judgment is.’
The rule, which went into effect Jan. 1, says that doctors can’t refuse to provide medically necessary health services within their scope of practice because of a patient’s gender identity. For instance, a gynecologist couldn’t refuse to perform a cervical Pap test for a transgender man.
The rule doesn’t explicitly require doctors to perform gender transition services, but it says providers can’t refuse services they already provide based on discrimination. The Department of Health and Human Services wrote that it would deal with complaints of discrimination on a case-by-case basis, by looking into whether a doctor provides the same service when it’s not related to gender transition.
“These provisions do not … affirmatively require covered entities to cover any particular procedure or treatment for transition-related care,” the rule says.
But opponents say the rule could require doctors to perform gender transition services they are morally opposed to or don’t feel would be healthy for the patient. They say that if a doctor would give a woman a hysterectomy for medical reasons, he would have to provide the same service to a transgender man trying to undergo gender transition.
The rule would particularly affect obstetrician-gynecologists, urologists, endocrinologists and plastic surgeons, said Lori Windham, a senior attorney for the Becket Fund for Religious Liberty, the group representing the lawsuit from the states of Texas, Wisconsin, Nebraska, Kansas and Kentucky, along with the Franciscan Alliance and several other religiously affiliated organizations.
“The doctor is essentially not able to use his or her best medical judgment, or counsel the patient about what their best judgment is,” Windham said.
The rule stems from the nondiscrimination section of the Affordable Care Act, which the Obama administration has defined to include a prohibition on discriminating on the basis of gender identity. Insurers and providers who don’t comply risk paying a hefty fine and losing their Medicare and Medicaid reimbursements.
Supporters of the requirement say it’s necessary to ensure transgender Americans can get the healthcare they need.
The administration wrote in its final rule that the requirement is consistent with the way other federal agencies are treating transgender people, referring to guidance from the Department of Education this year that schools should allow students to use the bathroom that corresponds to their gender identity, not biological sex. The Supreme Court plans to hear challenges to that policy next year.
But to opponents of the transgender healthcare rule, it constitutes an unprecedented new mandate for health providers and insurers to supply treatments to which they are opposed.
Because the requirement isn’t spelled out in the text of the healthcare law, the plaintiffs hope that appointees of President-elect Trump might supply an exemption or do away with the requirement entirely.
“We’re hopeful for a positive change with a new administration, but we’re prepared to continue the battle,” said Doug Wilson, chief executive of the Catholic Benefits Association.
It’s not clear how Trump might approach LGBT rights, as he’s under pressure from his party to take a conservative stance but has expressed support for the community. After the June shooting at an Orlando gay nightclub, Trump argued that he would do more to protect gays and lesbians than his presidential opponent Hillary Clinton.
But incoming Health and Human Services Secretary Tom Price will have closer proximity to the requirement, as it was finalized by the agency he will lead. And Price has expressed opposition to new allowances for transgender Americans. Earlier this year, Price called President Obama’s guidelines allowing transgender students to use the bathroom that correspond to their gender identity instead of their biological sex “absurd.”
Once Price takes office, he could put in motion the rule-making process to revise the way HHS interprets the healthcare law’s anti-discrimination provision. That process can take months, but it ultimately could hand the rule’s challengers what they’re looking for without depending on the courts.
Incoming Attorney General Jeff Sessions also could influence the issue, as his agency could refrain from appealing if the courts strike the rule. And Vice President-elect Mike Pence, who already has said he and Trump will withdraw the federal guidance about transgender students, also may weigh in.
A number of House Republicans have pushed back against the rule, writing in an October letter to HHS that it could require doctors to violate their “best medical judgment.”
“This rule for the first time in history requires doctors to perform gender transition procedures or treatments on patients including children, even if the doctor believes the procedure could be harmful,” Rep. Joe Pitts, R-Pa., and 46 other lawmakers wrote.
But several medical associations, including the American Medical Association, have expressed support for the requirements, saying they will help a population that has long experienced discrimination.
“We believe the proposed rule will assist some of the populations that have been most vulnerable to discrimination, such as lesbian, gay, bisexual and transgender individuals … and will better help provide those populations equal access to health care and health coverage,” the group wrote in a comment letter on the rules before they were finalized.