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Transgender health discrimination ban faces legal challenge from five states

Catholic healthcare providers join in federal lawsuit targeting Obama administration rule, in latest challenge to presidents transgender rights push

Five states and a group of Catholic healthcare providers launched a federal lawsuit on Tuesday challenging an Obama administration rule banning discrimination against transgender individuals in a healthcare setting.

The lawsuit is the latest major addition to a series of challenges conservative states are mounting against the administration as the president attempts to expand transgender rights through executive action.

On Monday, a federal judge in Texas issued a nationwide injunction against the administrations requirement for all public schools to give transgender students access to the bathrooms consistent with their gender identity. Barack Obama announced that policy in May and warned that schools failing to comply would risk the loss of millions in federal funds. More than 20 states have since joined a legal campaign to block the requirement.

The rule, which became final on 18 May, prohibits insurance companies and individual healthcare providers from refusing to provide or cover a health service they typically offer on the basis that a patient is trans. It does not require doctors to perform or insurance companies to cover transition-related healthcare services if the service or procedure is not normally offered.

Leading Tuesdays lawsuit are Texas, Wisconsin, Nebraska, Kansas and Kentucky. In their challenge, they argue that the administrations rule forces doctors to perform gender transition procedures on children.

On pain of significant financial liability, the regulation forces doctors to perform controversial and sometimes harmful medical procedures ostensibly designed to permanently change an individuals sex including the sex of children, the lawsuit claims.

Proponents of the rule called these claims ridiculous and full of inaccuracies.

Theyre simply trying to invent the worst imaginable scenario in order to scare people, said Jillian Weiss, the director of the Transgender Legal Defense and Education Fund (TLDEF).

In reality, said Weiss, the rule does not require physicians to provide transition-related services that she does not believe are medically necessary. It is simply a rule to establish parity, she said.

An insurance company that typically covers mammograms, for example, cannot refuse to cover the test for a patient who has a female anatomy but identifies as a man. Similarly, a family doctor cannot refuse to treat a trans person for the flu because he is opposed to transgender people. Hospitals could be in violation for placing a trans woman with a male roommate if rooms are segregated by gender.

Nothing in the regulations mandates that a doctor disregard her medical judgment in treating a trans child or adult, Ezra Young, a staff attorney with TLDEF, added in a statement. The only thing a doctor is obliged to do is treat all patients, including trans patients, with dignity and respect and to make treatment decisions free from bias. If a doctor has a sound, evidence-based, medical reason to delay transition care for a specific patient, that would be respected under the regulations.

Weiss also took issue with the plaintiffs claim that large numbers of children diagnosed with gender dysphoria the condition of identifying as a gender other than the one assigned at birth grow out of their dysphoria naturally.

Amid extensive research, most mainstream medical groups, including the American Academy of Pediatrics, agree that children who consistently express a transgender identity are transgender all their lives.

Surveys of transgender individuals consistently find that large numbers have experienced discrimination at their doctors office. A 2011 survey conducted by the National Center for Transgender Equality and the National Gay and Lesbian Task Force found that one in three transgender people had been harassed by a health care provider, and one in five had been refused healthcare outright.

Just under one third of trans people have delayed seeking healthcare because they fear this kind of discrimination. Others have travelled long distances for straightforward services such as mammograms and well-woman appointments. On Tuesday, Weiss said the rules were particularly important to rural patients, whose local doctor might be the only doctor for miles.

For the Obama administration, addressing these realities has been a multi-year challenge. The Affordable Care Act contains language that bars any insurer or healthcare provider receiving health department assistance such as Medicaid reimbursement from discriminating against patients based on their gender identity. Still, reports have abounded of insurers and healthcare refusing service to trans people. Amid these complaints, the health department in September 2015 proposed a new rule stating explicitly that transgender people were protected from bias. The rule was finalized this May.

More than a dozen other states have taken similar actions, advising insurance companies that state anti-discrimination laws protect trans people in healthcare settings. California prohibits discrimination by law.

Tuesdays lawsuit is spearheaded by the Becket Fund for Religious Liberty, a conservative legal action group that successfully argued Hobby Lobby v Burwell before the supreme court. In that case, the group targeted a different Affordable Care Act provision, one which required private sector employers to offer contraceptive coverage in their employees healthcare plans. The supreme court ruled 5-4 that some employers could refuse the coverage if it violated their religious beliefs.

No doctor should be forced to perform a procedure that he or she believes will harm a child, Lori Windham, senior counsel for the Becket Fund, said Tuesday. Decisions on a childs medical treatment should be between families and their doctors, not dictated by politicians and government bureaucrats.

Read more: https://www.theguardian.com/us-news/2016/aug/23/transgender-health-discrimination-ban-obama-lawsuit