In a follow-up email, Severino noted that some medical providers feared they would be coerced into providing abortion or sterilization services under the Obama-era rule. “A federal court enjoined the ‘termination of pregnancy’ provision because it risked forcing people to perform, refer for, or cover abortions, contrary to law,” he wrote. The new, “proposed rule conforms to the court’s judgment as well as statutes protecting against forced participation in abortions.”
Read: The federal government’s reversal: Let the states deal with transgender kids
It was only a matter of time, in other words, before HHS initiated a rollback of this part of the Obama-era rule on Section 1557. The department officially began the notice-and-comment process on Friday, which gives the public a chance to weigh in. (The rule change would also make minor changes to provisions on language-translation services, based on the argument that the Obama administration wildly underestimated the costs of its new translation requirements.)
LGBTQ advocacy groups see this move as an enormous step backwards for health-care civil rights. The original rule was adopted “in response to an overwhelming record of anti-transgender discrimination and barriers to health care and health coverage,” said Jocelyn Samuels, the former director of the HHS Office for Civil Rights and the current head of the Williams Institute at UCLA, in a statement. “A reversal of these protections would be contrary to the law and, if adopted, would seriously endanger the health and wellbeing of an especially vulnerable population.” The Williams Institute, a think tank on LGBTQ rights, said that this rollback would leave 1.4 million transgender adults and 150,000 transgender teens without the help of the federal government in situations of discrimination.
Conservative groups, meanwhile, applauded the proposed reversal. Before the rule was enjoined, a number of legal organizations warned that it would put pressure on doctors and religious hospitals to perform procedures they object to, such as gender-transition procedures. The Becket Fund, which litigates religious-freedom cases, dubbed it the “transgender mandate.” “Now patients can be reassured knowing their doctors are free to follow their best medical judgment,” said Lori Windham, one of the group’s senior attorneys, in a statement. “This new rule follows medical consensus and common sense.” The reversal would follow other significant steps from HHS to strengthen religious-freedom protections in health care, including a new rule earlier this month related to forced violations of conscience around abortion and sterilization.
Read: Health and Human Services and the religious-liberty war
More than half of states do have LGBTQ nondiscrimination protections in place, covering some combination of housing, hiring, and public accommodations, which includes health care. If HHS does, in fact, reverse this rule, it wouldn’t preempt or change those state laws. But this is another reason why these provisions are so controversial: Because there is no federal law in place that prohibits discrimination against LGBTQ people, protections vary widely depending on where people live in the United States. There have been efforts to pass a federal law along these lines. Just last week, the House of Representatives passed the Equality Act, a sweeping bill to put LGBTQ nondiscrimination protections in place. That proposal is expected to die in the Senate, however, meaning that this legal question will remain ambiguous.