Administration Proposes Discriminatory Anti-Trans Regulations, Weaponizing Medicare

In December, the Trump administration released three proposed rules that target transgender individuals in ways that harm communities, ignore laws, and interfere with the practice of medicine. Medicare Rights opposes all three proposed rules.

Ignoring Legal Precedent and Exceeding Authority

The first proposal is an attempt to use regulations to revise a statute, something that is beyond the power of an administrative agency to do. Section 504 of the Rehabilitation Act bars discrimination on the basis of disability in federally assisted and federally conducted programs and activities. In 2022, the Fourth Circuit—a federal appeals court—found that gender dysphoria is not excluded from the definition of disability. The Supreme Court declined to consider the case, leaving the Fourth Circuit’s finding in place.

The proposed rule rejects the Fourth Circuit’s finding—a move which exceeds the DHS’ authority.

In the proposed rule, the Department of Health and Human Services’ Office for Civil Rights proposes to add gender dysphoria to the set of conditions that cannot be used to demonstrate disability, thus rejecting the Fourth Circuit’s finding—a move which exceeds the agency’s authority.

Encroaching on Medical Decision-Making

The other proposals attempt to use regulations to block gender-affirming care for trans youth by penalizing practitioners who provide such care. The second proposal would deny Medicaid reimbursement for medically necessary gender-affirming care for trans youth. The third would prohibit hospitals from participating in Medicare or Medicaid if they provide such care.

These proposals are an attempt to interfere with the practice of medicine, something that has historically been regulated at the state level.

Weaponizing Medicare and Medicaid

By using the market power of Medicare and Medicaid to force hospitals to limit the care they provide, the third proposal weaponizes the programs and sets a dangerous precedent for interference with the practice of medicine. There would be nothing preventing an administration from prohibiting any medical services it chose, for adults or children.

There would be nothing preventing an administration from prohibiting any medical services it chose, for adults or children.

Medicare Rights Opposes These Proposals

This week, Medicare Rights submitted comments opposing the first proposal and urging the agency to withdraw it in its entirety. In the coming weeks, we will be submitting comments opposing the second and third proposals as well. Medicare, Medicaid, and the health system must be tools to provide safe, high-quality, and affordable health care for all enrollees. Policymakers should be searching for ways to protect and support marginalized individuals and communities, to bolster well-being, to allow medical practitioners to operate at the top of their licenses, and to embrace science over political gain.

Read the first, second, and third proposed rules.

Read our comments on the first proposed rule.

Read more about the second and third proposed rules.