Donald Trump’s administration has backtracked on yet another LGBT rights measure.
The Centers for Medicare and Medicaid Services, part of the Department of Health and Human Services, last week withdrew a proposed rule put forth in December 2014 to assure that same-sex spouses are treated equally to opposite-sex ones in long-term care facilities that receive Medicare and Medicaid funds, which most do.
The rule was proposed after the Supreme Court’s 2013 Windsor v. U.S. decision, which struck down section 3 of the Defense of Marriage Act, therefore allowing the federal government to recognize same-sex marriages. HHS wanted to assure that long-term care providers did not defer to state law on same-sex marriage, as not all states recognized it at the time. Barack Obama was president when the rule was proposed.
According to the current administration, the high court’s 2015 Obergefell v. Hodges decision, which legalized same-sex marriage nationwide, is sufficient to assure equal treatment of all spouses. “We believe that the Obergefell decision has addressed many of the concerns raised in the December 2014 proposed rule,” CMS administrator Seema Verma wrote in withdrawing the measure.
But some LGBT-focused health care groups say it’s still necessary to include detailed antidiscrimination language. “The Supreme Court has previously found that the practice of specifically naming the groups who are protected from discrimination is essential for a nondiscrimination law to have its intended effect,” noted a press release from Boston’s Fenway Health. The release quoted Justice Anthony Kennedy’s majority opinion in the 1996 Romer v. Evans decision, overturning Colorado’s antigay Amendment 2: “Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply.”
Fenway Health also mentioned the threat to same-sex couples and LGBT people generally from “religious objections” laws, such as the one in Mississippi. (The release was issued before Friday’s unveiling of the federal government’s “religious freedom” guidance, which allows broad application of such objections nationwide.)
“It could not be more clear that the proposed CMS rule on the rights of LGBT patients and residents is still needed,” Stephen L. Boswell, president and CEO of Fenway Health, said in the release. “By rescinding this important guidance, the likelihood has increased that LGBT people and same-sex couples will experience discrimination, neglect and abuse in long-term care, nursing homes, and hospitals.”