Two lawsuits temporarily blocked that definition from being implemented. Today’s proposed action by HHS would go along with those court rulings and permanently remove gender identity from the classes protected from discrimination by the health care law.
Severino said at a press briefing that the proposed rule conforms with existing law.
“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” said Severino in a statement.
“We have concluded in our most recent filing with the court that discrimination on the basis of sex does not cover gender identity,” he said during a press briefing.
Jocelyn Samuels, the former head of HHS’s Office for Civil Rights, says that the 2016 policy defining sex to include gender identity was based on how the courts had treated sex discrimination laws in education and employment.
“We determined based on extensive analysis of the law, and the way that the law had been applied under employment discrimination laws and education discrimination laws, that sex discrimination included not just discrimination against women and men, but also discrimination based on sex stereotyping and gender identity,” says Samuels, who is now director of the Williams Institute at the UCLA School of Law.
However, that rule had been on hold after a Texas judge, on the last day of 2016, ruled that the Obama administration exceeded its authority by interpreting sex discrimination to include discrimination against transgender people. The Trump administration signaled that it intended to reverse the rule when it told the judge there was no need to issue a final ruling because it was rewriting the rule.
Samuels says the change is “extraordinarily damaging” to transgender people.
Research from the Williams Institute found that more than 780,000 transgender people live in states that lack legal protections from gender identity discrimination in public accommodations, such as health care facilities. Twenty-eight states lack such protections, according to the Williams Institute.