LGBTQ+ advocacy groups, including the Human Rights Campaign and the Trevor Project, are asking the White House to add gender-affirming care to new rules under consideration by the Department of Health and Human Services, strengthening health privacy protections related to abortion.
The proposed changes to HIPAA, the Health Insurance Portability and Accountability Act of 1996, would bar law enforcement officials from accessing information about abortion across state lines in pursuit of prosecutions in states where the procedure has been drastically limited.
Like the right to abortion, access to gender-affirming care for minors has been severely curtailed or legislated out of existence in many states under the grip of right-wing fundamentalists.
About 20 red state legislatures have enacted laws banning gender-affirming care for minors. Most are tied up in court, while in July, judges in Kentucky and Tennessee allowed bans to go into effect as objections make their way through the judicial system.
“Right now, there is such an extreme attack that’s happening on the transgender community,” Michael Ulrich, a Boston University law professor, told Bloomberg Law, referring to new laws that would subject parents and healthcare workers to prosecution for providing children with trans care.
Expanding privacy protections to gender-affirming treatment would bring it “into the fold with health care” in general, Ulrich said.
In 2022, the Supreme Court struck down the federal right to abortion in Dobbs v. Jackson Women’s Health Organization.
“I would like to see a rule coming out of HHS that protects the privacy of health information related to gender-affirming care,” said Casey Pick, director of law and policy at the Trevor Project.
If an “individual leaves their state to go somewhere else to receive that care, that home state should not be able to drag back health information about what care an individual received somewhere else where that care was entirely legal,” Pick said.
With or without the addition of gender-affirming care, the new rules, proposed in April, are drawing fire from conservatives seeking to protect their Supreme Court win a year ago in June.
Sens. Ted Cruz (R-TX), J.D. Vance (R-OH), and 28 other GOP lawmakers have condemned the proposed changes for attempting “to undermine enforcement of Federal and State abortion laws, simply because this administration disagrees” with Dobbs.
The Supreme Court “returned the power to regulate or prohibit abortion back to people and their elected representatives,” they wrote in a letter criticizing the proposed changes.
In June, the Human Rights Campaign added their voice to the chorus of organizations calling on President Joe Biden to add gender-affirming care to the rules, with an expansion of protections of personal health information to “transgender, gender nonconforming, and other gender minority individuals’ PHI related to gender-affirming care.”
According to estimates by the Williams Institute, over 1.6 million adults and youth in the U.S. identify as transgender.
Laurel Sakai, Planned Parenthood’s national director for public policy and government affairs, said the parallels between the far-right’s attacks on abortion and the trans community are clear and call for similar responses.
It’s “concerning to see politicians taking the same approaches” in going after people for gender-affirming care, Sakai said. They’re the same as attacks on the right to abortion and “all sexual reproductive health,” she wrote in support of the addition of gender-affirming care protections to the HIPAA rules.
Georgetown Law professor Lawrence Gostin said a Supreme Court challenge to the rules change was inevitable, with congressional authority and previous “very aggressive” Supreme Court rulings around religious freedom at play.
“This is squarely in the Supreme Court’s judicial danger zone,” he said.