A little over a year ago, I wrote about the updates to the US military policies which supported the exclusion of trans people from military service. Roughly 13 months later, and during pride month, the Trump administration has announced another policy targeting trans people in the US, this time reversing healthcare protections that had been put in place during the Obama administration. The announcement came on the fourth anniversary of the Pulse massacre, when forty-nine people were murdered in an LGBT+ night club in Orlando, Florida.
Under this regime, Trump has finalised a rule to remove non-discrimination protections for LGBT+ people, which will affect their treatment and access to healthcare and health insurance. This rule is set to come into effect by mid-August.
In effect, this rule purports that sex discrimination applies to discrimination only on the grounds of being male or female, but strips away any protections on the basis of sexual orientation or gender identity.
The rule relates to the Affordable Care Act, S.1557 which defines non-discrimination protections on the basis of, “race, colour, national origin, sex, age or disability in certain health programs and activities.” In 2016, an Obama-era rule explained that protections regarding “sex” encompass those based on gender identity, which it defined as “male, female, neither, or a combination of male and female”. This week, the Department of Health and Human Services (HHS) Office for Civil Rights proposed this new rule, which effectively rescinds the Obama-era definition.
NPR, in discussion with Lindsey Dawson, associate director of HIV policy at the Kaiser Family Foundation reports that, under the new rule, a trans person could, for example, be refused healthcare for a check-up at a doctor’s office. Other possible scenarios include a trans man being denied healthcare treatment for ovarian cancer, or a hysterectomy not being covered by an insurer — or costing more when the procedure is related to someone’s gender transition. Speaking of insurers, the new rule affects regulations pertaining to access to health insurance, for example, including cost-sharing, health plan marketing and benefits.
However, the US Supreme Court issued a ruling on Monday which may undermine this new rule. In the majority 6-to-3 ruling, the court held that LGBT+ Americans are protected from job discrimination under existing law. The court stated that discrimination against an employee on the basis of sexual orientation or gender identity intrinsically amounts to discrimination against them on the basis of sex, which is illegal under Title VII of the Civil Rights Act of 1964.
Justice Gorsuch, summarised that: “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex”. This landmark decision is a major step forward for discrimination reform within the US, however, it may not completely counterbalance Trump’s proposed rule, because this deals with employment, rather than healthcare.
Further, the HHS is empowered to interpret the various provisions of the Affordable Care Act however they see fit. Further, the Obama era antidiscrimination clauses rely on Title IX, which is related to Title VII but is legally distinct. Trump’s rule could also mean that those seeking an abortion could be denied healthcare if performing the procedure violates the provider’s moral or religious beliefs.
An example of this logic was seen in opposition to Obama’s rule. In 2019, a federal judge ruled against the Obama administration’s original rule expanding transgender health care rights, arguing that it infringed on health care providers’ religious freedoms by forcing them to provide transgender or abortion-related medical services. As such, the Supreme Court ruling may not provide a blanket discrimination protection for the LGBT+ community.
In discussing all of these legal concepts and political stances, it is easy to overlook the fact that these are not hypothetical issues, and the effect of this rule could be life-threatening to many LGBT+ people.
The need for Obama’s anti-discrimination rule was well established. According to a 2010 study, almost one in five trans people said they had been denied care by a medical provider because of their gender identity, and 28% were subjected to harassment in a medical setting. This discrimination has also proved fatal.
In 1999, Robert Eads died as a result of ovarian cancer. As a trans man, he had not been notified of his diagnosis, and when he finally discovered the truth, his doctor said that his first instinct was to send Eads to a psychologist rather than looking to treat his cancer. It is also important to remember Tyra Hunter, who died in 1995, after an EMT learned of her trans status following a car accident and refused to touch her on the journey to the hospital, only miles from the White House.
17th January 1999: Robert Eads dies of ovarian cancer. More than two dozen doctors in Georgia refused to treat Eads – who was transgender – on the grounds that doing so would harm their practice. #OnThisDay #Queerstory pic.twitter.com/m1CrGjRuwv
— Gay Community News (@GCNmag) January 17, 2019
The proposed rule works to undo the sacrifice and the progress that has been made towards LGBT+ equality in the healthcare profession. Although the Supreme Court’s decision is a momentous milestone for LGBT+ employees across the US, much of this progress will be undermined if those same employees face discrimination when seeking healthcare or treatment.
Masha Gessen writes that: “In fact, trans people as a group are at once unusually dependent on the healthcare system—for many of us, trans care that may include hormonal treatments or surgeries is vital—and accustomed to facing casual, systematic discrimination”.
The US is facing confusion and uncertainty in many different respects at the moment, and removing this vital protection from the LGBT+ community is furthering that confusion and uncertainty once more.
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