The Obama administration unveiled two broad initiatives Friday aimed at combating discrimination against transgender Americans in schools and health-care coverage, affirming the president’s goal of elevating transgender protections to one of the central civil rights issues of his presidency.
The moves, both of which had been in the works for years, prompted an immediate backlash from conservatives who disparaged the measures as government overreach. White House officials countered that they reflected one of the administration’s core principles: protecting those targeted for discrimination because of their identity.
White House press secretary Josh Earnest said the actions “illustrate how consistent and forceful this administration has been about fighting against the idea that people could be discriminated against because of who they are.”
[Obama’s quiet transgender revolution]
Hours after directing public schools nationwide to allow transgender students to use the bathroom of their choice, the administration issued a second directive prohibiting health insurers from denying transgender Americans coverage and services based on gender identity.
The “significant guidance” to school administrators followed an April 19 ruling by the U.S. Court of Appeals for the 4th Circuit, which seemed to invite action by the White House; the majority opinion indicated that federal guidance on what constitutes sex discrimination under Title IX of a 1972 education law was out of date.
The directive from the Education and Justice departments instructs schools to ensure that transgender students have access to the bathrooms, sports teams and other facilities of their choice. Conservative critics of the new rules said the move amounted to a violation of states’ rights.
Attorneys general in at least two states — Texas and Oklahoma — threatened to sue. Texas Attorney General Ken Paxton said, “If President Obama thinks he can bully Texas schools into allowing men to have open access to girls in bathrooms, he better prepare for yet another legal fight.” Arkansas Gov. Asa Hutchinson (R) recommended on Twitter that school districts “disregard” the guidance and Texas Lt. Gov. Dan Patrick (R) predicted that “this will be the end of public education, if this prevails.”
Presumptive GOP presidential nominee Donald Trump, who in the past had expressed support for transgender individuals using the bathroom of their choice, said the kind of regulations announced Friday should be left to the states.
“I don’t think it’s a federal issue where the federal government gets involved. And I see what’s happening. It’s become such a big situation,” he said on NBC’s “Today” show.
The Justice Department is already embroiled in a legal battle with North Carolina over that state’s law mandating that individuals can access only a bathroom that matches their gender at birth; on Friday, the state’s governor, Pat McCrory (R), cited the directive as fresh evidence that the states and Congress must act to rein in the administration.
Earnest dismissed the criticism: “I think this does underscore the risk of electing a right-wing radio host to a statewide office,” Earnest told reporters, referring to Patrick, a talk radio host for many years.
The education directive was issued in the form of an eight-page letter from Catherine E. Lhamon, the assistant secretary of education for civil rights, and Vanita Gupta, head of the Justice Department’s Civil Rights Division. It also included a 25-page packet of “examples of policies and emerging practices for supporting transgender students.”
“Schools have a responsibility to provide a safe and nondiscriminatory environment for all students, including transgender students,” wrote Lhamon and Gupta.
The administration’s new health insurance rule, finalized Friday by the Health and Human Services Department, could affect hundreds of thousands of Americans who have been denied coverage or treatment based on their gender identity or sexual orientation. While the rule does not require insurers to automatically approve all gender transitioning services, it means that they cannot categorically deny coverage as they have in the past. These affected services can range from vaginal reconstruction to treatment for ovarian cancer even when an individual identifies as a man.
The rule, which applies to the anti-discrimination provisions of the Affordable Care Act, is significant because it compels insurers to apply the same standards to every plan they administer, including those in the private sector. It also bars discrimination based on sex stereotyping, which Lambda Legal senior counsel Jennifer C. Pizer said effectively extends the rule’s application to gay, lesbian and bisexual Americans.
Health and Human Services Secretary Sylvia M. Burwell said the new rule represented “a key step toward realizing equity within our health care system and reaffirms this administration’s commitment to giving every American access to the health care they deserve.”
Mara Keisling, executive director of the National Center for Transgender Equality, called the move “tremendously significant.” She added that while her group and others believe the health-care law already includes this requirement because it bars sex discrimination, “not all the insurance companies and everybody agrees with that.”
Jay Kallio, who transitioned from female to become a man in 2005, discovered three years later that he had breast cancer. He said that his treatment was delayed because a prominent doctor in New York “refused to even call me with my cancer biposy results.” He was eventually treated by other doctors, but some problems persisted. Kallio said that in one instance, he was unable to get medication for a different illness because the pharmacist objected to the idea that he was transgender.
Insurers said it was too early to estimate the economic impact of the new requirements, which apply to coverage starting Jan. 1, 2017. Clare Kushing, a spokeswoman for America’s Health Insurance Plans, noted that companies have already proposed the benefits and premiums they would offer on the federal health exchange next year, and the rule is “introducing some complexities that could impact the cost of coverage.”
But the health-care rule was largely overshadowed by the administration’s schools directive, which Earnest described as “a policy decision that did include some White House involvement” rather than “an enforcement decision” or “a response to the ongoing legal dispute” with North Carolina.
“This is a response to a request that the Department of Education has received from teachers and administrators all across the country,” he said.
[How the psychology of public bathrooms explains the ‘bathroom bills’]
But individuals familiar with the administration’s decision, who spoke on the condition of anonymity to discuss internal deliberations, said officials had been monitoring court cases across the country and concluded now was the time to act. Talks between Education and Justice began last year, driven largely by Lhamon’s quest for clarity in the face of inquiries from school administrators.
A ruling by the U.S. Court of Appeals for the the 4th Circuit’s ruling last month also seemed to demand action from the administration. The court ruled that the case of a transgender student in Gloucester County, Va., who had been banned from using the boy’s bathroom, could move forward. The court said that prior regulation on Title IX, which bars sex discrimination at schools that receive federal funding, was decades old and allowed for ambiguity because it only specified accommodations for male or female students, not for transgender people.
“We conclude that the Department’s interpretation of its own regulation . . . is to be accorded controlling weight in this case,” the judges wrote, adding that they would “leave policy formulation to the political branches.”
Winnie Stachelberg, executive vice president for the liberal think tank Center for American Progress, said the two policies show “the administration has spoken quite clearly” on what protections transgender Americans deserve.
Rep. Trent Franks (R-Ariz.), who chairs the House Judiciary subcommittee on constitutional and civil rights matters, suggested congressional action may follow Friday’s directives.
“After this president is gone, Congress is going to probably spend the next 20 years trying to clean up after him,” he said. “This administration has completely thrown not only reason, but the Constitution he [President Obama] swore to preserve, in the trash.”