Trump’s Pride Month Assault on Trans Lives
June 15, 2019 – David R. Weiss

Yesterday my childhood friend, Scott, posted a “news” article about the Trump administration’s announcement of a new “rule” to interpret the meaning of “sex discrimination” in health care law. Titled “DEBUNKED: Trans health care isn’t being ‘rolled back’ by Trump,” he added his own introductory comment, “Well I’ll be damned. Maybe some other people aren’t doing their research.”

This essay was my rather lengthy reply (spread out across multiple Facebook reply boxes). It’s part of my commitment to “up my game” in actually responding to some of the racism and xenophobia (in its many forms) that I see on Facebook. I do it partly to hold my friends accountable; more so, to hold myself accountable; and, as a bonus, to share some of my thoughts with you.

Disclaimers: I’m not an expert on the Affordable Care Act. And while I try to be a trans ally, even an accomplice for transgender affirmation-liberation-justice, I’m not an “expert” on trans issues either. But choosing silence just because I’m not an expert is too easy for me. Too dangerous for others. So I’m choosing something other than silence. This is what chose instead of silence:

Hi, Scott, as your good friend, I have to tell you this article is a lie. On the up side, looks like you don’t have to be damned after all. 🙂

I count at least a dozen transgender persons as beloved family and friends, so I follow news like this pretty closely. But this particular story has a pretty complex history. So tonight I did the research—took me a couple hours to wade through the details. And having done so, I can now tell you with complete confidence this reporter is either lying or incompetent.

[Aside: I discovered in prepping this for my blog that the “reporter,” Blaire White, regards herself as a “center-right trans-activist,”(!) although most of the trans community seems to view her the way much of the black community views Candace Owens: as someone who feeds both their ego and their pocketbook by riding rightwing bias against their own respective community all the way to the bank.]

After announcing that once again the LGBT community was “all worried” that the Trump administration was trying to remove protections for transgender persons in health she claimed to offer “the truth.” She writes: “The truth: The transgender protection that everyone is hysterical about being revoked was ruled against in court before Trump was even president.”

This is true; but only sort of, as you see below.

She writes: “It was never law; therefore it is impossible for the Trump administration to revoke it.”

This is FALSE. The protection in question was law from July 2016 until October 2019—and it remains so, in a way, until 8/2020, when the new “rule” just announced by the Trump administration will go into effect. [The “protection” was a “rule” released by the Obama administration to serve as the defining interpretation of the term “sex discrimination” in Section 1557—the Health Care Rights Law—of the Affordable Care Act.

She writes: “The mandate was struck down in 2016 before Trump was inaugurated, which means Obama was still president.”

This is FALSE. A conservative federal judge in Texas put in place an “injunction” against Health and Human Service (HHS) enforcement of the 2016 Obama rule in December 2016 (so, yes, Obama was still president), but that rule, which went into effect in July 2016 remained in effect and individuals could (and did) file complaints and lawsuits based on it—and still can (and still do).

She writes: “The mandate was attempted, again, in 2019 and overruled by another federal judge.”

This is FALSE. It wasn’t “attempted again”; it remained in effect the whole time— HHS was just prevented from enforcing it. And the “final judgment,” delivered in October 2019 was not made a different federal judge, but by the same Texas judge who made the December 2016 injunction. By now it’s clear she has little concern for accuracy; this is incredibly sloppy/incompetent reporting.

She writes: “In fact, as Director of the Office for Civil Rights Roger Severino puts it, transgender people are already protected by various statutes that prevent discrimination in health care.”

This is really FALSE!!! He doesn’t say this at all. THIS IS A LIE. If you read either the official HHS press release or the official HHS “Fact Sheet,” Severino nowhere says “trans persons are already protected …” He doesn’t say this because he doesn’t believe it, and the new rule announced by Trump IN FACT DENIES IT. One heading of the Fact Sheet states that the new Trump rule “Omits Overbroad Provisions Related to Sex and Gender Identity” (as had been provided in the previous Obama rule). It then explicitly states that the new Trump rule rejects any idea that “discrimination on the basis of sex includes prohibitions on discrimination on the basis of sexual orientation or gender identity.” The new rule merely confirms the Trump administration whole-hearted rejection of protections for transgender persons.

She writes: “In fact, as Director of the Office for Civil Rights Roger Severino puts it, ‘Everyone deserves to be treated with respect and according to the law. Our dedication to our civil rights laws is as strong as ever.’”

This is also super FALSE. Okay, yes, Severino said those words, but he chose them very carefully. He’s just announced the new Trump rule, which clarifies that “according to the law,” transgender persons have no right to be protected from discrimination. So treating them “according to the law,” means being able to discriminate against them. In fact, the full text of the new rule (300+ pages) argues that it will save $123.4 million per year—because trans persons will no longer be able to file complaints about discrimination. She is quoting him completely out of context to prove a point that is an outright lie.

In fact, Severino is on the record (in a legal brief written prior to being appointed by Trump as director of OCR) as saying, “gender identity and sexual orientation … are changeable, self-reported, and entirely self-defined characteristics”; he can say “our dedication to our civil rights is as strong as ever,” because he doesn’t believe civil rights laws protect trans lives!

She concludes: “So what does all of this mean? This means that health care in terms of how it affects transgender people today is the exact same as it was in 2016. Nothing has been rolled back by the current administration. Trans people can still seek out doctors, surgeons, and medical professionals at the same capacity in which they always have.”

This is FALSE—a complete lie. Now, this is complicated, but her conclusion is not: her conclusion is a total lie. Here’s why:

From 2010 when the ACA went into effect until 2012, trans persons could assert a health care right under the ACA, Section 1557, the Health Care Rights Law, but they were largely on their own. In 2012 the Obama Office of Civil Right (OCR) backed up their claim with an “opinion letter,” stating that discriminations protections indeed included gender identity. In May 2016 the Obama OCR and HHS released their final rule affirming this (it went into effect in July 2016).

Immediately some conservative religious health care providers filed a lawsuit lest they be required to recognize legitimate medical needs of trans persons.

In December 2016, a conservative federal judge in Texas, issued a national injunction against OCR/HHS enforcement of the rule. But this didn’t overturn the rule; that didn’t happen for 3 more years. And that meant that individuals who felt their rights were violated could still file complaints and sue in court. The injunction simply meant that OCR/HHS couldn’t go after organizations who openly violated the rule. This effectively put these protections intended by the ACA out of reach of anyone who couldn’t afford by themselves to fight a hospital or insurance company in court.

Finally, in October 2019 the same federal judge in Texas went beyond the injunction and rendered a final judgment vacating (revoking) the transgender protections in the 2016 Obama rule altogether. That judgment basically said the Obama rule went beyond the sense of binary biological sex in its interpretation of what “sex discrimination” meant—and that it infringed on religious conscience. Which is ultimately a fancy way of saying that when the religious convictions of a hospital system are in conflict with the current medical consensus regarding the complexity of biological sex or the validity of transgender identity, then religious beliefs outweigh medical science … when it comes to medical care. That’s a pretty scary notion if you just say it out loud slowly.

Besides all this, she’s even more wrong.

Between 2017 and 2018 four other federal court cases in Minnesota, Wisconsin (twice), and California, all ruled that the 2016 Obama rule does include protections for gender identity. And even when the Texas court vacated/revoked the 2016 Obama rule, in that same decision it granted both the ACLU and a regional Gender Alliance group the right to appeal its decision—which they have.

All of this has meant that from July 2016 through August 2020 (when the Trump rule will go into effect) any insurer or hospital that chose to roll back coverages they had offered in begrudging compliance to the 2016 Obama rule knew they could still face lawsuits. And, in that full (300+ page) text of the new Trump rule, they state that they EXPECT 65,000 insurers, hospitals, and other health care programs (that is, about HALF of the entities covered by the Health Care Rights Law) WILL choose to allow discrimination against transgender persons based on the new Trump rule. (This could mean anything from denying preventative care to someone who has transitioned, to purposefully mis-gendering them in medical records, performing unnecessary exams, treating them in demeaning ways, or giving hospital room assignments that deny a patient’s chosen gender identity—all of which have been found to be discriminatory in court cases under the Obama rule.

So it is an absolute lie to say that this new Trump rule changes nothing.

Finally, the new Trump rule eliminates explicit nondiscrimination protections for LGBT people in ten other HHS regulations that aren’t even part of Section 1557, many of which were in place prior to the 2016 Rule.

In other words the new rule makes very clear that it the Trump administration intends to erase protections for LGBT persons as far as it possibly can. Which is to say, this administration wishes to erase the legitimacy of LGBT persons—in this case particularly trans persons. And to erase someone’s legitimacy is to erase their right to dignity, to safety, to life.

That’s the goal. And either this reporter knows it and is trying to hide it, or she’s too incompetent to even be called a reporter. You can decide which.

[Aside: that was the end of my reply to Scott.]

I add the following conclusion to my blog post: trans persons follow a journey toward authenticity that requires as much rigor and courage—and exacts as much anxiety and fear—as any journey toward selfhood. They deserve no less than the health care protections offered to others in our society. In many ways, because of the bias and fear and outright hatred often vented toward them, they need those health care protections even more.

Those of us who listen to their lives with attentive humility learn so much—and love so much better for that listening. May we stand fiercely alongside them in these days. They are beloved.

*     *     *

SOURCES:

The “news” story: https://thepostmillennial.com/debunked-trans-health-care-isnt-being-rolled-back-by-trump

On Blaire White: www.newsweek.com/how-transgender-youtube-vlogger-became-conservative-darling-716393

On Roger Severino: www.theatlantic.com/politics/archive/2017/06/the-man-behind-trumps-religious-freedom-agenda-for-health-care/528912/; www.glaad.org/tap/roger-severino;

HHS Press Release: www.hhs.gov/about/news/2020/06/12/hhs-finalizes-rule-section-1557-protecting-civil-rights-healthcare.html

HHS Fact Sheet: www.hhs.gov/sites/default/files/1557-final-rule-factsheet.pdf

My understanding of the long twisty saga of the 2016 Obama rule and the 2020 Trump rule comes from the blog of Health Affairs, the leading peer-reviewed journal of health policy thought and research.

June 13, 2020—the announcement of the new Trump rule: www.healthaffairs.org/do/10.1377/hblog20200613.671888/full/

October 16, 2019—the October 2019 decision to vacate the 2016 rule:

www.healthaffairs.org/do/10.1377/hblog20191016.336929/full/

September 18, 2019 update on the sage: www.healthaffairs.org/do/10.1377/hblog20190918.101914/full/

October 2, 2018—other court ruling at odds with the Texas court: www.healthaffairs.org/do/10.1377/hblog20181002.142178/full/

January 2, 2017—on the injunction: www.healthaffairs.org/do/10.1377/hblog20170102.058190/full/

May 14, 2016—the release of the original 2016 Obama rule: www.healthaffairs.org/do/10.1377/hblog20160514.054868/full/

 

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David Weiss is a theologian, writer, poet and hymnist, doing “public theology” around climate crisis, sexuality, justice, diversity, and peace. Reach him at drw59mn@gmail.com. Read more at www.davidrweiss.com where he blogs under the theme, “Full Frontal Faith: Erring on the Edge of Honest.” Support him in writing Community Supported Theology at www.patreon.com/fullfrontalfaith.