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New regulations that could affect transgender people badly.

Hi Everyone,

I have a few very important things (I feel they are at least) to discuss. I would like to bring to your attention of a few new regulations that have been put forth that could have some very disturbing realities for transgender people (Heck, the whole LGBT community for that matter).  I’m on the mailing list of the National Center for Transgender Equality news and this week they sent out two emails alerting me of some new regulations that affect us.  (Both emails are currently available on NCTE’s news page.)  Here’s the first one:

December 11, 2008
Dear Friends,

I wanted to make you aware of some changes to the Family and Medical Leave Act (FMLA) that could impact the lives of transgender people.  The FMLA was enacted in 1993 to ensure that employees would be able to take unpaid leave from work in certain circumstances related to medical care for them or their families.  The emphasis on medical privacy in the original FMLA is especially vital for transgender people.

However, on November 17, 2008, the Department of Labor published final regulations for the FMLA that erode medical privacy and could have long-lasting adverse effects on transgender people when they take effect as planned on January 16, 2009.  These new regulations appear to be part of the Bush Administration’s final effort to enshrine ideologically driven policies in advance of the Obama Administration taking office.


The new regulations reveal private medical information and could subject transgender people to harassment and discrimination.

  • Unlike the current policy, the new policy requires doctors to list their specialization as well as medical facts relating to the employee’s condition on the medical certification form given to one’s employer.  A person’s transgender status could be revealed, requiring the individual to choose between a job and important medical care related to transition.
  • The new regulations allow the employer to contact the employee’s health care provider to authenticate the medical certification, as long as the employer representative making that contact is not the employee’s direct supervisor.

The new regulations allow employers, not doctors, to determine whether an employee has a serious health condition that would make them eligible for unpaid leave.

  • Because the recovery times for transition-related surgery and treatment are often extensive, it is extremely important that employees be allowed to take leave when doctors say it is warranted, regardless of whether employers believe the time off is medically necessary.

Family members may have to reveal the transgender status of their partners, children, or relatives to receive leave.

  • A family member who is trying to take FMLA leave to care for their partner, child, or relative may be subjected to increased harassment and discrimination, and the family member’s FMLA claim may be denied.

Over the next few months, we will continue to update you about the work NCTE is doing to protect your medical privacy. In the meantime, we urge you to contact your Members of Congress to encourage them to expand FMLA and to encourage them to work with the Obama Administration to repeal these harmful regulations.


Mara Keisling
Executive Director

And the second email:

December 18, 2008
Dear Friends,

We had no idea yesterday when we sent you word of the impending new regulations around the Federal Medical Leave Act (FMLA) that they would be merely the second worse [sic] regulations to tell you about this week.  Then today, the Department of Health and Human Services (HHS) released what can only be described as breathtakingly immoral regulations that could prevent transgender people from getting any health care whatsoever.  In their press release, DHHS said that the “Provider Conscience” rule ensures “the right of federally-funded healthcare providers to decline to participate in services to [which] they object.”

What the press release does not say is that if this is allowed to go into effect in January, transgender people, already struggling for healthcare access, could be turned away by any medical provider who feels that transgender status is against their moral, religious, or even personal beliefs.


In essence, any person who works in a hospital or other health care facility, including medial technicians, pharmacists, and janitors, would not have to perform their jobs if doing so would offend their beliefs.

While this regulation would have profound effect on everyone’s access to healthcare, transgender people could potentially be denied care at overwhelming rates, even for preventive care or emergency medical treatment.

Although we wanted to make you aware of the “Provider Conscience” regulations, we want you to know that they are not scheduled to take effect until January 18, 2009 and healthcare facilities have until October 1, 2009 to comply.  You should not in any way be afraid of seeking health care at this point; not only are the rules not in effect yet, but most healthcare providers will continue to treat transpeople appropriately despite the prejudices of the very few who support these new regulations.

You should know that NCTE is working with numerous organizations to advocate that the incoming Obama Administration and members of Congress repeal this immoral policy.

We will continue to provide you with updates about he work NCTE is doing to stop these regulations from being implemented. Meanwhile, you can draw attention to the outrageousness of this rule by calling your members of Congress as well as encouraging the incoming administration to repeal it before it is even implemented.

Thank you for your continued support,

Mara Keisling
Executive Director

Now, it disturbs me that a president (How much longer do we have to wait ’til he’s out of here? Ugh) would have the gall to strip off the protections of so many Americans. It also disturbs me that a president can be swayed so strongly by the religious right (or any radical group for that matter) and have Congress just sit back and watch this crap happen. Government is supposed to protect their citizens and yet this administration has done everything it could to strip protections from minorities everywhere. What’s going to happen if a trans person is turned away from emergency care and is thrown out of a hospital and dies on their door step? I guess with these new regulations – nothing. There is something totally wrong with this picture. What will happen when the first African-American is turned away in by some bigoted southern doctor and dies on his/her door step?  How about this, what if a atheist turns away services to a Christian because of their beliefs? I will bet that the atheist will have the police there at his/her door step quicker than you could count to 3. The protections were there for a reason. To protect everyone and not just a select few. But I guess coming from this administration, it is nothing new.

I have the same comments on the new regulations for the FMLA. There is so much that could go wrong with this new regulation that it really bothers me. What ever happened to privacy rights? This could lead to so many discrimination problems that it’s ridiculous. It is no business of the employer what the employee went to the doctor for. I could see someone with some sickness being afraid to go to the doctor now, afraid of being fired because of some diagnosis. Hell, I bet you could find an employer that would fire someone just because they were diagnosed with depression. There are some diseases or sicknesses that are very personal to people and should be kept private and some that if left untreated could be deadly. These new regulations have such far reaching consequences that I’m really beginning to worry about our nation of ours. What do you think?

Michelle Lee

2 Responses

  1. The National Women’s Law Center has just issued an analysis of the new HHS regulations on women’s health concerns. You can read it here: http://www.nwlc.org/pdf/final%20HHS%20rule%20threatens.pdf.

  2. Hi Abby,
    Thank you so much for the information. I will pass this information around. The way this new regulation could affect everyone is amazing, but in a bad way. I don’t understand how this administration would put something like that through and consider it projecting our citizens of this country. The only way any reasonalble thinking person could come away and not think the president is not trying to stick it to the American public at large. Does he have a grudge? I don’t know. I hope the next administration will have better insight and clean up some of this craziness.
    Can’t wait tell 2009! It can’t come fast enough, lol.
    Take care Abby,
    Hugs Michelle

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