Trump Health Civil Rights Office Quickly Dismantles Biden Policy

President Donald Trump’s agenda on gender, abortion, and religion is driving major changes at a little-known health department office with the power to drastically affect US health-care coverage.

The US Department of Health and Human Services’ Office for Civil Rights has the power to enforce federal discrimination protections, religious freedoms, and information privacy requirements against schools, hospitals, and other institutions. How it applies that power, however, is largely subject to who is running the White House.

Under President Joe Biden and his HHS secretary, Xavier Becerra, the OCR issued rules expanding health-care protections to transgender individuals, leveraging privacy law to shield abortion records from law enforcement, setting discrimination standards for federal grants, updating disability protections, and more.

The office under Trump is moving to undo much of its predecessor’s work in a way that critics say cuts against the grain of the office’s mission of expanding access and instead leads to disparities in who receives needed care.

Even before current HHS Secretary Robert F. Kennedy Jr. took office, the agency announced the OCR would prioritize enforcing religious protections. Since then, the office launched investigations into four universities for alleged antisemitism.

The OCR is rapidly overhauling Biden gender policy as well.

In February, the OCR withdrew gender-affirming care guidance while the broader HHS issued guidance stating there were only two sexes. The OCR is also threatening enforcement against Maine for violating federal law by allowing transgender students to compete in women’s sports. Meanwhile, the HHS has dropped an appeal of an attack on an OCR nondiscrimination health rule protecting transgender people and said it’s considering regulatory action to define sex.

“Anybody who has ever needed to rely on the protections of federal civil rights laws is seeing those protections systematically erased,” said Kellan Baker, executive director for the Institute for Health Research and Policy at Whitman-Walker, a community health group in the nation’s capital.

“It’s really damaging to have statements that are more about violating civil rights than protecting them, coming out from an entity that is supposed to be protecting everyone and making sure that people have fair and equal access to the health care they need,” Baker said.

Supporters, however, are embracing the changes as long overdue and are eager for more.

“OCR is moving fast and fixing things,” said Roger Severino, director of the OCR during Trump’s first term.

Directional Shifts

Directional shifts at OCR aren’t entirely new nor are the issues that drive them.

Rulemaking around Section 1557 of the Affordable Care Act and its discrimination protections—the most controversial area in OCR’s regulatory space—goes back to the Obama administration.

“There is a long history of trans and nonbinary people being subject to extensive discrimination in health care and health insurance,” said Jocelyn Samuels, director of OCR under former President Barack Obama. When they were in effect, the Obama 1557 regulations “went a long way toward ensuring equal treatment.”

The 2016 regulation made explicit that categorically excluding gender-affirming care from insurance plans violated federal law, Samuels said, spurring numerous companies to eliminate pre-existing categorical exclusions.

Samuels, who most recently served as vice chair of the US Equal Employment Opportunity Commission but was fired by the Trump administration earlier this year, also noted that the 1557 rule “triggered more attention to claims brought under the provider conscience laws.”

Trump’s first administration established a Conscience and Religious Freedom Division at OCR.

The Biden administration then eliminated the division and moved employees elsewhere. It also put out its own version of a rights of conscience rule. Biden’s OCR also revised a Trump rule on the rights of health providers to opt out certain care on moral or religious grounds.

Biden’s approach, however, “systematically de-prioritized enforcement of those rights and dismantled the ability of OCR to enforce those rights,” said Rachel Morrison, fellow at the Ethics and Public Policy Center. She also noted that the agency refused enforcement.

New Concerns

Trump’s second term “gives alarm” and is a “flashback to what we dealt with before,” said Jennifer Pizer, chief legal officer at Lambda Legal, a civil rights group that she said succeeded in a dozen lawsuits against the first Trump administration blocking rule changes.

Now, however, there’s an “additional layer of concern, because of some ways the law has shifted in the intervening years” under US Supreme Court decisions, Pizer said, particularly those around religious exemptions.

“When I look at this landscape, including the shift at OCR, it sets off very loud alarm bells,” Pizer said.

As for what’s next at OCR, Severino said that “regulations for protection for infants with disabilities born alive and assisted suicide are unfinished business” for the Trump team.

“The other big unanswered question is when they will relaunch the Conscience and Religious Freedom Division that the Biden abortion partisans shut down,” Severino said.

Morrison likewise sees the OCR addressing a rule that applied the Health Insurance Portability and Accountability Act to abortion services’ records, as well as the 1557 rule. She also expects changes to a rule on Section 504 of the Rehabilitation Act of 1973, particularly where it considered gender dysphoria a protected disability.

She also noted that an HHS policy announcement that it wouldn’t use notice-and-comment rulemaking procedures for certain matters suggests the agency is “looking for ways to move things quickly.”