Trump poised to roll back transgender health protections


The Trump administration appears ready to roll back health care protections for transgender people, and advocates are gearing up for a fight.

A proposed rule from the Department of Health and Human Services (HHS) that’s expected in the coming days would make it easier for doctors, hospitals and insurance companies to deny care or coverage to transgender patients, as well as women who have had abortions.

Coming on the heels of the military transgender ban, there are fears the administration could go even further and use the proposal as an opportunity to narrow the definition of gender.

The administration hinted in a recent court filing that new health regulations could be published as soon as next week. The rule is expected to weaken or eliminate an anti-discrimination provision enshrined in ObamaCare.

The provision says patients cannot be turned away because they are transgender, nor can they be denied coverage if they need a service that’s related to their transgender status.

Religious providers say they expect the administration’s rule to reinforce their right not to provide treatment that is against their beliefs.

Advocates, meanwhile, say they are concerned that the proposal could jeopardize the gains made in making sure transgender individuals receive equal access to care.

The proposal is “likely to send an even stronger signal that the administration endorses discrimination in health care against transgender people,” said Harper Jean Tobin, director of policy at the National Center for Transgender Equality.

The rule “won’t mean that overnight transgender people can’t get health care, but it will be a steady drip of allowing more discrimination,” Tobin said.

Chase Strangio, an attorney at the American Civil Liberties Union (ACLU), said access to health care can be a life or death circumstance, and the rule could have “catastrophic effects” if it is finalized.

“To have the government take a stand in favor of discrimination is deeply upsetting, ” Strangio said.

Once the proposal is released, a public comment period will follow. After that, a final rule will be issued.

As for what comes next, Strangio said the ACLU has had two years to prepare for that.

“If the final rule looks like the proposal we are anticipating, we and our partners will file suit as soon as possible,” Strangio said. “We can expect many legal challenges to any final rule.”

President Trump repeatedly pledged support for the LGBTQ community on the campaign trail in 2016. But advocates say the president’s words increasingly ring hollow, and his administration has been steadily eroding protections for transgender individuals.

For example, the military’s transgender ban took effect earlier this month, despite objections from advocacy groups and medical experts. And the Supreme Court on Monday said it would hear arguments this year on three cases concerning whether federal law applies to transgender identity.

Additionally, the Justice Department has argued that the main federal civil rights law doesn’t protect employees from discrimination based on gender identity. Former Attorney General Jeff Sessions in 2017 wrote a memo saying the law “does not encompass discrimination based on gender identity per se.”

The existing health care rule was first issued in 2016, six years after the 2010 Affordable Care Act was signed into law. The rule prohibited providers and insurers who receive federal money from denying treatment or coverage to anyone based on sex, gender identity or termination of pregnancy.

It also required doctors and hospitals to provide “medically necessary” services to transgender individuals, as long as those services were the same ones provided to other patients.

That rule was challenged in court by a group of Christian providers called the Franciscan Alliance. They argued the rule forces insurers to pay for abortions and compels doctors to perform gender transition services, even if they disagree with those services on moral or medical grounds.

A federal judge in Texas agreed with that argument, issuing a nationwide injunction in late 2016 that is still in effect. The ruling said Congress had outlawed discrimination based on “the biological differences between males and females” but not transgender status.

The new proposed rule has been under review at the White House Office of Management and Budget for more than a year, something that experts say is highly unusual.

That delay is causing confusion in the health care industry: ObamaCare’s nondiscrimination statute is the law, even if a rule implementing it has been put on hold.

In a court filing earlier this month, the administration said it would be publishing the proposal soon, a move that would likely affect the lawsuit in Texas.

Luke Goodrich, senior counsel with the Becket Fund for Religious Liberty and a lead attorney for the plaintiffs, said providers would be better served by a ruling from the judge. He said they just want to make sure their religious protections are upheld.

Katie Keith, a health care consultant and professor at Georgetown Law, said, “It’s going to be really hard for people to understand their rights in health care” while the confusion continues.

Tobin, of the National Center for Transgender Equality, said the uncertainty is having a harmful effect.

“At a time when the administration is trying to overturn the entire Affordable Care Act, at a time when the transgender ban in military is taking effect, transgender people are scared for their ability to get the health care they need, and that their providers know they need,” Tobin said.

Goodrich argues that providers won’t turn away patients just because they are transgender, so long as the doctors aren’t giving transition-related care or “being pressured to perform abortions.”

He said the plaintiffs have been treating transgender people for years and “won’t stop doing that, because they provide care for everyone. That’s not what the lawsuit is about in our view.”

Transgender advocates are concerned the administration will use the lawsuit as an excuse to redefine gender.

The New York Times last year reported that HHS proposed in a memo that government agencies adopt a narrower definition of gender in a way that would essentially end federal recognition of transgender individuals.

No rules have been issued, but advocates say administration officials have been telegraphing their views.

The HHS memo is a “blueprint” for discrimination, and the nondiscrimination proposal is a major part of it, Tobin said.

[The Hill]

Federal judge halts Trump attempt to discharge service members deemed ‘unfit’ only because they are HIV-positive

A federal judge has issued a ruling from the bench halting the Trump administration’s attempts to discharge service members merely due to their HIV-positive status. The order goes into effect immediately for the U.S. Air Force after two airmen sued Acting Secretary of Defense Patrick Shanahan.

“The two Airmen serving as plaintiffs, who filed pseudonymously, were given discharge orders at the end of last year after being found ‘unfit for continued military service’ despite compliance with medical treatment and physical fitness requirements,” Lambda Legal announced Friday.

The lawsuit was filed by Lambda Legal and OutServe-SLDN, with partner law firm Winston & Strawn.

“These decisions should be based on science, not stigma, as today’s ruling from the bench demonstrates,” Lambda Legal’s Scott Schoettes said, calling the judge’s decision, ” a major victory.”

Equality Cases Files published a copy of the ruling here.

[Raw Story]

FBI unable to find photos of Comey, Mueller ‘hugging and kissing’ as Trump claimed

The FBI says it was unable to locate any photos of former FBI Director James Comey and special counsel Robert Mueller “hugging and kissing” after President Trump claimed he could provide 100 such images.

BuzzFeed News reporter Jason Leopold on Tuesday shared the Justice Department’s response to a Freedom of Information Act (FOIA) request he filed with the bureau asking for photographs of Mueller and Comey “hugging and kissing each other.”

The FBI said in response that its search did not turn up any records corresponding with Leopold’s request.

The bureau noted that there are three categories of law enforcement and national security records protected from FOIA requests, but added that the disclosure “should not be taken as an indication that excluded records do, or do not, exist.”

Comey, who was fired as FBI director in May 2017, joked on Tuesday that his wife was “so relieved” to hear the results.

The Justice Department’s response was dated Oct. 17, just six weeks after Trump claimed in a Sept. 4 interview with The Daily Caller that Mueller and Comey, who worked together at the FBI, are “best friend[s]” as part of a broader complaint about alleged conflicts of interest Mueller has in his investigation into Russian interference in the 2016 presidential election.

“He’s Comey’s best friend,” Trump told the conservative publication. “And I could give you 100 pictures of him and Comey hugging and kissing each other. You know, he’s Comey’s best friend.”

The president has frequently railed against Mueller’s investigation, claiming repeatedly that he did not collude with Russia in the 2016 election, suggesting the special counsel’s office is biased against him and questioning why Mueller is not investigating Democrats.

Trump interviewed Mueller for FBI director after firing Comey last year, but ultimately appointed current FBI Director Christopher Wray to the post.

It’s unclear if Trump made the decision before Mueller was named special counsel in May 2017.

Comey and Mueller have a working relationship dating back to the early 2000s, when they both served at the Justice Department.

There is no evidence to suggest that Comey and Mueller are “best friends” or that their relationship has influenced the special counsel’s investigation.

[The Hill]

The Trump administration reportedly wants the government to revoke civil rights protections from transgender people

The Trump administration is weighing making its biggest attack on transgender rights yet in a maneuver that would strip federal recognition of the gender identity of some 1.4 million Americans — and require genetic testing in some cases to match a person’s gender with the sex they were assigned at birth.

Erica Green, Katie Benner, and Robert Pear of the New York Times reported on Sunday that the Department of Health and Human Services is floating a memo that would establish the legal definition of sex under Title IX — the federal civil rights law that bans discrimination in education on the basis of gender — that would render immutable the sex of a person at birth. In other words, the government would not recognize a person’s gender other than the one based on their genitalia when they’re born.

Per the Times:

The department argued in its memo that key government agencies needed to adopt an explicit and uniform definition of gender as determined “on a biological basis that is clear, grounded in science, objective and administrable.” The agency’s proposed definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with, according to a draft reviewed by The Times. Any dispute about one’s sex would have to be clarified using genetic testing.

According to the Times, it would “eradicate federal recognition” of some 1.4 million transgender Americans.

HHS is preparing to formally present the new definition to the Justice Department before the end of the year, and if the department decides the change is legal, it could be enforced across Title IX laws and government agencies, including the Departments of Education, Justice, Health and Human Services, and Labor.

The effects could be far-reaching — it could impact which locker rooms and bathrooms transgender students could use as well as which sports teams students join or what happens to single-sex classes, the Times points out. If enacted, it could even require some people to produce DNA tests as part of their educational experience — an unprecedented step to enforce a biological definition of gender.

The Trump administration has been terrible on transgender rights

The Obama administration worked to advance transgender rights and loosen federal regulations to allow for more gender fluidity including defining gender identity as protected by Title IX. President Donald Trump and his administration have taken steps to reverse that.

Soon after taking office, the Trump administration sent out a letter officially revoking Obama-era guidance on protecting trans students in federally funded schools, saying it was federal overreach. Trump has sought to ban transgender people from serving in the military, rescinded a memo protecting trans workers, and stripped protections for trans prisoners. It has also worsened protections for transgender people in health care.

Trump on the campaign trail said he would embrace LGBTQ people and said he would “fight” for them while Hillary Clinton would bring in “more people that will threaten your freedoms and believes.” But as Vox’s German Lopez pointed out, he’s done quite the opposite:

As president, Trump has acted more or less how you would expect a typical anti-LGBTQ Republican to act. Maybe that reflects his own opinions. Maybe it reflects the views of the people he’s surrounded himself with in his administration, including Vice President Mike Pence and Attorney General Jeff Sessions, both of whom have very long histories of anti-LGBTQ causes.

This new assault on transgender people — and one that includes genetic testing — is just the latest chapter.

[Vox

]

Trump administration halts visas for same-sex partners of diplomats, UN employees

President Donald Trump’s administration began denying visas to the unmarried, same-sex partners of foreign diplomats and officials and employees of the United Nations this week — making marriage a requirement to be eligible for a visa.

The policy was made effective Monday.

It comes despite the fact that the majority of countries do not recognize same-sex marriage and many same-sex couples face prosecution in their own countries.

The shift was detailed in a memo circulated at the United Nations’ headquarters in New York last month but unveiled in July, according to the State Department.

The policy shift gives the same-sex partners of foreign diplomats and U.N. workers until the end of the year to get married or leave the country.

The State Department said in a briefing Tuesday that the policy will affect about 105 families in the USA, 55 of which have links to various international organizations. It was not clear how many foreign diplomats and U.N. employees with pending U.S. posts will be affected by the policy change.

Twelve percent of the 193 U.N. member states represented in New York allow same-sex marriage, according to Samantha Power, a former U.S. ambassador to the United Nations who served under President Barack Obama.

The Trump administration said the new policy is more consistent with the Supreme Court ruling in 2015 that legalized same-sex marriage. The heterosexual partners of foreign diplomats and U.N. employees are also not eligible for U.S. visas.

Critics of the move argued the policy would create hardship for gay couples from countries that ban same-sex marriage or offer only civil unions. Those who marry in the USA to secure their visa status could face criminal proceedings once they return to their home nations.

“Those not yet in the country will need to show they’re married to secure a visa, potentially forcing those living in countries without marriage equality to choose between a posting at UN headquarters or family separation,” Akshaya Kumar, deputy U.N. director at Human Rights Watch, wrote in a blog post.

UN Globe, which advocates for non-discrimination of LGBTI staff at the United Nations and in its peacekeeping operations, said it was an “unfortunate change in rules, since same-sex couples, unlike opposite-sex couples, have limited choices when it comes to marriage.”

Power, the former ambassador, described the policy in a tweet as “needlessly cruel and bigoted.” The State Department said the rule change would promote equal treatment. It said it recognized that not all countries permit same-sex marriage and it was prepared to work with individual cases to find a solution for those not able to marry.

[USA Today]

Trump Officials ‘Did Not Want’ Census Survey To Ask About Sexual Orientation

Plans to add questions about sexual orientation and gender identity to the largest survey in the U.S. — the Census Bureau’s American Community Survey — stalled after President Trump entered the White House last year.

The newly released testimony of an official at the Commerce Department, which oversees the Census Bureau, points to a possible reason. Earl Comstock, who heads the department’s Office of Policy and Strategic Planning, was recently deposed for the lawsuits over the 2020 census citizenship question.

Asked by Matthew Colangelo, an attorney for the plaintiffs, if sexual orientation and gender identity questions were not included “because you came to the policy position you did not want to ask” them, Comstock replied: “That was the administration’s conclusion, yes.”

A transcript excerpt of Comstock’s Aug. 30 deposition was filed Wednesday with Manhattan federal court by the plaintiffs’ attorneys from the New York state attorney general’s office, the American Civil Liberties Union and the law firm Arnold & Porter.

As NPR has reported, four federal agencies during the Obama administration submitted requests for sexual orientation and gender identity questions to be added to the American Community Survey. Last March, however, the Census Bureau announced that there was “no federal data need” to do so.

A “sensitive” topic

During his deposition, Comstock appears to have mistaken that those requests were for the 2020 census and not the American Community Survey, which the Census Bureau also conducts.

“The prior administration had wanted to add … to the decennial census a question on sexual orientation and gender identity,” he testified, according to the transcript excerpt. “So for all the people that are raising an uproar right now about the addition of this [citizenship] question, apparently there was no concern about adding such a question on another sensitive topic last year.”

The requests for the questions came from the Justice Department, the Department of Housing and Urban Development, the Centers for Medicare and Medicaid Services and the Environmental Protection Agency.

In a June 2016 letter to the Census Bureau, then-Housing and Urban Development Secretary Julián Castro wrote, “Valid, reliable, and nationally representative data on sexual orientation and gender identity are essential to HUD fulfilling its mission.” The Justice Department noted in its request that such data could help the agency enforce the Civil Rights Act’s protections against employment discrimination.

Under the Trump administration, however, Justice Department officials contacted the Census Bureau about the “appropriateness” of sexual orientation and gender identity topics appearing on the upcoming American Community Survey, according to a March 2017 letter sent by the Commerce Department that was published on the website of Sen. Tom Carper, a Democrat from Delaware.

Later, Justice Department officials stood down on the agency’s request, saying that it “requires thorough analysis and careful consideration.” The department did not immediately respond to an inquiry about the status of its analysis.

A spokesperson for the Census Bureau, Michael Cook, referred NPR’s inquiries to the Commerce Department, which did not immediately respond to a request for comment.

The White House also did not immediately respond to an inquiry.

“Inadvertently listed”

Asked by email in March if any Census Bureau officials were concerned the Trump administration would not support the requests to add sexual orientation and gender identity questions to the American Community Survey, Cook replied: “N/A.” Asked to clarify, he later wrote back, “It should have read as NO.”

While the 2020 census is set to include new relationship categories differentiating between “same-sex” and “opposite-sex” couples, the Census Bureau so far has not directly asked about sexual orientation or gender identity in its surveys.

A group of Senate Democrats introduced a bill in July that would require such questions on census forms for every U.S. household by 2030 and by 2020, on the American Community Survey. About one in 38 households every year are required by federal law to answer that survey.

In March 2017, the issue made a brief appearance in the appendix of a Census Bureau report announcing the proposed question topics for the 2020 census and an update to the American Community Survey. But hours after the report was posted on the bureau’s website, the reference to “Sexual Orientation and Gender Identity” as “Proposed” was removed from the second-to-last page.

The bureau said that it was ” inadvertently listed.” But in a draft version of the reportNPR obtained through a Freedom of Information Act request, a full page dedicated to the topic that was missing from the final version noted:

[NPR]

Trump expands federal contractors’ ability to cite religious freedom in discrimination cases

The Trump administration issued a directive earlier this month that critics argue will allow federal contractors to assert their right to a religious exemption from LGBT discrimination charges.

The Department of Labor directive, issued on Aug. 10, expands the circumstances under which federal contractors can claim they have a religious exemption when battling discrimination charges.

The directive addresses an executive order enacted in 1965 that blocks businesses that work with the federal government from discriminating against people on the basis of sex, gender identity, race, sexual orientation and other factors.

The new notice cites recent Supreme Court decisions, including a ruling in favor of a baker who refused to bake a cake for a same-sex couple and the 2014 Burwell v Hobby Lobby decision that certain corporations can be exempt from regulations over religious objections.

It also cites recent executive orders by President Trump, including his order earlier this year directing federal agencies to respect and protect religious liberty and political speech.

Critics told BuzzFeed News that the new directive would contradict a promise Trump made when he took office last year to not to touch an executive order issued by former President Obama that banned federal contractors from engaging in LGBT discrimination.

Department of Labor and White House officials told the news outlet that the Obama-era executive order remains in place, but declined to answer questions on when the religious exemption directive could be utilized by contractors.

“The purpose of Directive 2018-03 is to ensure [the Office of Federal Contract Compliance Programs] guidance on the religious exemption is consistent with federal law related to religious freedom and religious accommodation, including recent U.S. Supreme Court precedents and Executive Orders, which OFCCP is obligated to follow,” a Labor Department official told BuzzFeed News.

The official noted that the executive order enacted in 1965 allows “religious organizations to make employment decisions on the basis of religion.”

The new directive also states that it “supersedes” a Frequently Asked Questions (FAQ) memo on the illegality of anti-LGBT discrimination.

“The previous FAQ did not reflect recent Supreme Court decisions regarding religious freedoms,” the Department of Labor official told BuzzFeed News.

“President Trump and his Administration are working diligently to improve the lives of all Americans, including faith-based and LGBT communities,” White House deputy press secretary Lindsay Walters told BuzzFeed News. “We will continue to ensure anti-discrimination protections are in place for all Americans.”

Advocates opposing the new directive told the news site that the policy opens the door for contractors to cite religious exemptions when discriminating against LGBT employees.

“This Administration apparently recognizes — correctly, in our view — that rescinding [Obama’s 2014] executive order outright would cause a huge public outcry,” Shannon McGowan, a former lawyer in the Department of Justice’s Civil Rights Division and the current head of Lambda Legal, told BuzzFeed News. “So instead, this Administration is trying to accomplish the same end through different means.”

McGowan noted that a fifth of the federal workforce is employed through federal contractors, telling the news site that the “damage that could be done here cannot be overstated.”

[The Hill]

Trump mocks protester at rally: ‘Was that a man or a woman?’

At least two protesters interrupted President Trump’s rally in Minnesota on Wednesday, with the president mocking one individual’s appearance.

The activists held up signs and disrupted the event minutes apart as the president railed against illegal immigration. Trump brushed aside each individual, telling them to “go home” and “say hello to Mommy.”

“Was that a man or a woman? Because he needs a haircut more than I do,” Trump said as the second protester was escorted out.

“I couldn’t tell,” Trump continued. “Needs a haircut.”

The crowd roared, and broke into a “USA” chant.

The president then transitioned back into criticisms of Democrats and the media, blaming each for the country’s immigration problems.

Wednesday night’s rally came hours after Trump signed an executive order to detain families apprehended at the border together. The decision came as a stark reversal after the president and his administration spent days claiming they could not address the practice of separating families.

The rally took place in Duluth, Minn., where he rallied support for Peter Stauber, a county commissioner and a retired police officer, who is running to represent the congressional district that contains Duluth.

After bringing Stauber on stage for brief remarks, the president launched into his usual list of talking points. He touted the economy, blamed Democrats for having weak positions on immigration and touted the results of his summit last week with North Korean leader Kim Jong Un.

[The Hill]

Trump nominates homophobic former Family Research Council chief to board of ‘religious freedom’ crusaders

It was announced Tuesday that President Donald Trump nominated Gary Bauer to be the latest member of the Commission on International Religious Freedom.

Bauer once led the Family Research Council, the anti-LGBT organization that advocates that homosexuals are harmful to society. The group has even been labeled a hate group by the Southern Poverty Law Center.

Before that, Bauer was known for his opposition to having an LGBT advisor to former President Ronald Reagan’s Commission on the HIV/AIDS Epidemic in the 1980s.

“Millions of Americans try to raise their children to believe that homosexuality is immoral,” he wrote in a 1987 memo. “In many states homosexual practices are illegal, including sodomy. For you to appoint a known homosexual to a Presidential Commission will give homosexuality a stamp of acceptability. It will drive a wedge between us and many of our socially conservative supporters.”

Candidate Donald Trump boasted of his support for LGBT Americans during the 2016 campaign.

“Thank you to the LGBT community! I will fight for you while Hillary brings in more people that will threaten your freedoms and beliefs,” Trump even wrote in a June, 2016 tweet.

[Raw Story]

Trump moves to ban most transgender troops

President Donald Trump on Friday issued orders to ban transgender troops who require surgery or significant medical treatment from serving in the military except in select cases — following through on a controversial pledge last year that has been under review by the Pentagon and fought out in the courts.

The memorandum states that while the secretary of defense and other executive branch officials will have some latitude in implementing the policy, “persons with a history or diagnosis of gender dysphoria — including individuals who the policies state may require substantial medical treatment, including medications and surgery — are disqualified from military service except under limited circumstances.”

The document provides few details about how the ban will be implemented, what will happen to those who are currently serving and under which limited circumstances transgender troops may be able to serve.

The memo also said that Secretary of Defense Jim Mattis, “in the exercise of his independent judgment, has concluded [the policies] should be adopted by the Department of Defense.”

It added that “the Secretary of Homeland Security concurs with these policies with respect to the U.S. Coast Guard,” which would also be affected by the policy.

In a subsequent statement, the White House press office explained that the policy was “developed through extensive study by senior uniformed and civilian leaders, including combat veterans.”

“The experts’ study sets forth a policy to enhance our military’s readiness, lethality, and effectiveness,” it continued, adding that officials “concluded that the accession or retention of individuals with a history or diagnosis of gender dysphoria — those who may require substantial medical treatment, including through medical drugs or surgery — presents considerable risk to military effectiveness and lethality.”

“This new policy will enable the military to apply well-established mental and physical health standards — including those regarding the use of medical drugs — equally to all individuals who want to join and fight for the best military force the world has ever seen,” the White House statement concluded.

LGBT advocates who have sought to head off such a move in the courts swiftly slammed the decision, calling it “appalling, reckless and unpatriotic.”

“Donald Trump and Mike Pence are literally wreaking havoc on the lives of our military families,” said Ashley Broadway-Mack, president of the American Military Partner Association. “This unconscionable attack on our military families cannot stand — we refuse to allow it.”

[Politico]

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