The media is doing a fine job of pushing the narrative that the Trump administration has “rolled back” Obama era transgender protections, specifically in the Affordable Care Act (Obamacare). There is a very important piece of information missing in the headlines and wailing from the left, though.
In 2016 the Obama administration’s proposed regulation, a “civil rights safeguard” for the transgender community that banned discrimination against transgender medical patients and health insurance customers, defined discrimination “on the basis of sex” to include gender identity. That’s right – it happened in 2016, the final year of the two-term Obama administration. The ACA was rammed through by Speaker Nancy Pelosi and a Democrat-controlled Congress and signed into law in 2010. So, technically, Obama had one foot out the door when he suddenly felt the need to make special concessions for one special interest group.
The squabble seems to be over the definitions of sex and gender. The Obama rule conflates gender identity with a person’s biological sex. The Trump administration announced in May 2019 that it was formally proposing a regulation that would replace the 2016 Obama rule.
The Department of Health and Human Services’s proposed regulation would replace a 2016 rule from the Obama administration that defined discrimination “on the basis of sex” to include gender identity. The Trump administration rule would no longer recognize gender identity as an avenue for sex discrimination.
Without the Obama-era language, health care workers would be free to object to performing procedures like gender reassignment surgery, and insurers would not be bound to cover all services for transgender customers. The new rule would fit into a broader agenda pushed by religious activists and is consistent with administration actions to limit civil rights protections for gay and transgender Americans in a variety of domains, including education, employment and housing.
The Obama administration adopted the health care discrimination rule to carry out a civil rights provision of the Affordable Care Act. It prohibits discrimination based on race, color, national origin, sex, age or disability in “any health program or activity” that receives federal financial assistance.
The Obama administration included “gender identity” as an aspect of sex, and specified that the term means a person’s “internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.” The Obama-era definition of discrimination also protected women who had terminated a pregnancy.
Here’s the catch – the Obama-era rule never went into effect. In December 2016 a federal judge in Fort Worth, Judge Reed O’Connor, blocked the gender identity part of the rule, at least temporarily, after a group of states and religious medical providers sued. He said at the time, “Congress did not understand ‘sex’ to include ‘gender identity.”
You wouldn't know from this story that the "Obama-era protections" in question were stopped by a judge in December of 2016 and never went into effect. https://t.co/3yK1gf9huf
— Varad Mehta (@varadmehta) June 12, 2020
As noted by sister publication Twitchy, National Review explained that “the final rule brings federal policy into compliance with court rulings.” It wasn’t rolling back anything. The final rule puts it all into order.
So, when the story came out this week that the HHS announced its final rule on the subject, the fact that it isn’t really a “rollback” of anything because the Obama rule was never in effect wasn’t a part of any conversations. The press and Democrats simply embraced the narrative that it is the evil Trump administration (they are transphobic, you know) undoing the great Obama and his administration’s work. And, the cherry on top of this phony story? The Trump administration announced the final rule on the 4th anniversary of the mass shooting at the Pulse nightclub in Florida.
Chuck Schumer sprang into action to sound the alarm on Twitter. It’s all so cruel, you see.
How cruel do you have to be to announce a roll back of health protections for transgender Americans in the middle of a global pandemic, in the middle of #PrideMonth, and on the anniversary of the Pulse nightclub shooting?!https://t.co/Y78yHofYGe
— Chuck Schumer (@SenSchumer) June 12, 2020
Critics say now discrimination will be allowed due to religious objections or in coverage denial of hormone therapy, for example, while supporters say it clears up the confusion.
Critics of the final rule say the change would make it easier for doctors and hospitals, citing religious or other reasons, to discriminate against and reduce access to care for transgender people or to deny abortions. They say the change would also allow health-insurance companies to deny coverage of certain procedures, such as hormone therapies or hysterectomies, to people who identify as transgender.
“It clears up the mass confusion unleashed by Obama’s redefinition of sex discrimination,” said Roger Severino, Director of Health and Human Services’ Office of Civil Rights. “Sex is a biological reality critically important in the practice of medicine and science, which are substantially funded by HHS.”
The party of science continues to deny that there are only two sexes in human biology – male and female. The LGBTQ community demands that the government and society, in general, accept transgender people for whatever they want to identify as. Ok. But, in order for a transgender woman to become female in physical appearance, surgery must be performed and hormone treatment must occur. Removing male genitalia and softening physical features in order to appear female is necessary. It is frankly insulting for transgender women to demand to be recognized as just as female as biological females when it is just not so. Female athletes, for example, are waking up and standing up to the absurd policies that are allowing transgender women to compete in sports against biological women.
People can call themselves whatever they want, as far as I’m concerned. It doesn’t change science, though, and it would be nice if the press was honest about reporting on policy decisions.