“The President’s executive order affirming that there are only two genders will likely lead to a reversal of any mandates to provide sex transition surgery,” said Josh Blackman, a professor at South Texas College of Law Houston.
Trump on Monday didn’t take many other sweeping health policy actions, though he did rescind some Biden administration executive orders on health, touching on prescription drug costs, the Affordable Care Act, and the Covid-19 pandemic.
Under Biden, the US Department of Health and Human Services issued a rule on Section 1557 of the Affordable Care Act enforcing the view that civil rights protections cover sexual orientation and gender identity. That rule has been challenged and is currently paused by federal courts.
Trump’s move indicates “the priority for a really drastic shift of HHS policy and the way that people are going to be able to access gender affirming care,” said Carmel Shachar of the Center for Health Law and Policy Innovation at Harvard Law School.
According to the National Institutes of Health, about 53% of states had policies protecting gender affirming care under Medicaid as of 2022. Now, “it’s possible with this change of policy that we’ll see HHS try to prevent states from offering coverage of these services,” Shachar said.
“This is an administration that is trying to move very swiftly that had a clear sense of what they wanted to do going in,” Shachar said. “They have a very strong sense of where they want to steer the ship, and a lot of interest in doing so relatively quickly.”
‘Tip of the Iceberg’
Among the Biden-era executive orders Trump rescinded on Monday were those titled “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation;" “Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity;" and “Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals.”
Trump also revoked Biden’s 2021 executive order establishing a White House Gender Policy Council.
Under Trump, Biden’s 1557 rule is unlikely to be implemented, said Nicole Huberfeld, a Boston University law professor and co-director of the BU Program on Reproductive Justice. “A new interpretation will be issued that relies on the gender binary and is purposefully not protective of the civil rights for sexual minorities or other people who are LGBTIQA+.”
That, however, is “just the tip of the iceberg,” Huberfeld said. Litigation against Biden’s 1557 rule will largely “become moot,” she said. The executive order also suggests that the US may change its position in a Supreme Court case over Tennessee law banning gender-affirming care for minors.
“The question becomes whether someone is willing to step into the US shoes to continue litigating the Equal Protection arguments in that case,” Huberfeld said.
Additionally, if the government’s position is “that people who are sexual minorities don’t get special protection under the law,” Huberfeld said, there may also be “reiterpretation of other major civil rights statutes” under Trump, like the Civil Rights Act of 1964 and Title IX of the Educational Amendments Act.
Trump’s executive order specifically took issue with the Biden administration’s view of the Supreme Court’s 2020 decision in Bostock v. Clayton County, which held LGBTQ are protected from workplace discrimination. In 2021, after Bostock, the Biden administration announced it would interpret “sex” under the ACA as including gender identity.
The Biden administration’s position that the ruling “requires gender identity-based access to single-sex spaces” is “legally untenable and has harmed women,” Trump’s executive order said, calling on the attorney general to “immediately issue guidance to agencies to correct the misapplication of the Supreme Court’s decision.”
The HHS secretary is likewise directed to “clear guidance expanding on the sex-based definitions set forth in this order,” Trump’s order said.
Beyond Gender
“The most momentous” of Trump’s Monday maneuvering for broader health policy is the order directing the US to withdraw from the World Health Organization, said Lawrence Gostin, faculty director of Georgetown University’s O’Neill Institute for National and Global Health Law. Gostin also advises the WHO.
The WHO order comes as the US faces growing concerns over human cases of H5N1 cases of bird flu.
“I think it will make Americans far less safe and far less secure,” Gostin said.
Trump also withdrew a Biden administration order on testing ways to lower drug costs.
Larry Levitt, executive vice president for health policy at KFF, said the Biden order “wasn’t even that consequential, so one has to wonder why Trump went out of his way to jettison it.”
“The big unanswered question is what Trump is going to do about drug price negotiation in Medicare,” Levitt said, referring to the Biden era program where the government negotiates with pharmaceutical companies over what it pays for drugs.
Trump’s rescinding of Covid-19 related executive orders, taken alongside his “appointments on the healthcare focused side, it’s almost like this interest in relitigating the pandemic,” Shachar said. “Because a lot of this dates back to Covid.”
“So many of the choices the Biden administration made when it came to the pandemic, I think, probably felt to Trump like a critique of his administration,” Shachar said.
Changes to Biden’s abortion and reproductive rights policies weren’t the main focus of any of Monday’s executive activity. However, reproductiverights.gov, a Biden administration website for family planning, appeared offline Monday.
“That’s a pretty strong statement,” Huberfeld said.
“I’m expecting that shoe to drop any moment,” Gostin said.
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