According to advocates like Dale Melchert, staff attorney at the Transgender Law Center, the Court’s decision could be used to challenge the healthcare rollbacks and stop them from taking effect.
On June 15, the Court ruled in a 6-3 vote that employers cannot fire employees based on either their sexual orientation or their gender identity and made the distinction between sex and gender in a way that could have broad implications for LGBTQIA+ rights.
“The Supreme Court made it crystal clear that transgender people are protected by prohibitions against sex discrimination,” Melchert told MedTruth.
The decision came the same week that HHS revised its rules surrounding gender and sex discrimination in the healthcare field. Melchert referred to an estimated 140 existing protections against sex discrimination in federal law.
In 2016, President Barack Obama’s administration clarified the meaning of “sex discrimination” in Section 1557 of the Affordable Care Act, also known as the Health Care Rights Law, which outlaws discrimination on the basis of “race, color, national origin, sex, age or disability.”
The final rule specified that “sex” extended not just to biological sex but also to gender identity, which was defined as a person’s choice to present as “male, female, neither or a combination of male and female.”
That clarification no longer exists under President Donald Trump’s administration’s HHS. Melchert said that the reversal, finalized June 12, complicates patients’ understanding of their rights.
“And that’s the problem,” Melchert said. “How are people supposed to know about their rights? People are panicking right now. So many trans people are like, ‘does this mean that like I’m not protected anymore?’”
How the Health Care Rights Law, Based on Public Comment, Protected Patients
In 2016, before the Health Care Rights Law was codified, the HHS gathered public comment on the proposed legislation distinguishing sex and gender. The agency released a notice of proposed rulemaking — a standard process that establishes a public comment period before a law is finalized.
The public comment period, applied to rulemaking in any government agency, gives the public access to a draft so that they can submit comments and feedback. A government agency then uses the public comments to modify the draft, producing what is called a final rule.
“The Obama administration did that in a very thoughtful way through two different requests for notice and comments from the public,” Melchert said. “They gathered research and data in order to promulgate regulations.”
HHS issued the final rule after addressing public comments asking that gender identity be explicitly covered within the definition of sex. The final rule also protected people seeking to terminate a pregnancy from being turned down and provided examples of discriminatory practices in the healthcare industry that were now specifically outlawed, Melchert said.
In 2016, the Health Care Rights Law:
For example, a transgender man undergoing a hysterectomy would have to be covered if a cisgender woman’s hysterectomy would be covered.
According to Melchert, that could include “insurance companies that will cover gynecological exams for cisgender women but may not cover it for transgender men just because of the designation of male.”
This statute included respecting individuals’ names and pronouns as well as, when separating people by gender, treating everyone in accordance with their self-identified gender regardless of what might be listed on medical documents.
HHS Rolls Back Protections Without Responding to Public Comment
On June 12, 2020, the HHS released a final rule that removed many of these protections. The HHS had released a notice of proposed rulemaking to the public in 2019, but according to Melchert, many public comments weren’t taken into consideration.
“The final rule is essentially the same as the proposed rule, despite the fact that the agency received almost 200,000 comments from the public,” he said. “In terms of agency rulemaking, agencies are supposed to respond to those comments and incorporate the feedback into the final rule, so it’s very clear that the Trump administration’s HHS was very intent on moving forward with its plans irrespective of what the public thought and the impact that it would have on people.”
The final rule:
Now, patients can only claim to have been affected by sex discrimination if they are discriminated against for being male or female. Gender identity is no longer a protected status.
The Trump administration’s HHS modified the language of section 1557 so that it only applies to insurers of plans created under Title I of the Affordable Care Act, according to Melchert. That means all employment-sponsored health plans would be exempt.
The religious exemption allows health providers to refuse to perform abortions if the procedure contradicts their religious beliefs. “The religious exemption in Title IX was intended for the educational context for religious institutions and schools,” Melchert said. “It wasn’t meant for healthcare providers, so that was a complete overreach on the part of the Trump administration.”
The 2016 regulations codified under President Obama created a unitary enforcement mechanism to challenge discrimination in the healthcare industry under the Health Care Rights Act. “That’s really important because people don’t live single-issue lives,” Melchert said. “For example, if someone went to the doctor and the doctor was both racist and transphobic, that person could submit a complaint to the Office of Civil Rights and have their claims adjudicated together.” Now, under the new rule, that person would have to file two separate claims. “It’s a logistical nightmare, it’s confusing, we don’t know how that’ll actually play out, and also that means that it’s impossible to bring intersectional claims,” Melchert said.
Melchert said this decreases the ability of people who are not proficient in English to understand their rights.
Melchert said that even if the final rule regarding section 1557 takes effect, trans patients will still be protected under the Affordable Care Act itself.
“No matter what the Trump Administration says or does, the Health Care Rights Law is the law of the land, and most courts have said it protects transgender people,” according to the National Center for Transgender Equality website. “Only Congress has the power to change the law by repealing the ACA.”
Religious Definition of Gender as Determined by Biological Sex
Many conservatives believe the Obama administration overreached in interpreting gender as more than male and female; HHS under Trump said in a statement announcing the final rule that the 2016 version “exceeded the scope of the authority delegated by Congress.”
Some also said that physicians should not be required to perform abortions if the procedure contradicts their religious beliefs. In part, these rollbacks reflect their concerns, which often come from the standpoint of protecting religious freedom.
The administration said the changes are intended to reduce confusion regarding sex and gender, which they say would make it easier for physicians to treat their patients.
The final rule states that HHS will enforce sex discrimination protections “according to the plain meaning of the word ‘sex’ as male or female and as determined by biology” in order to counter confusion legally as well.
HHS maintains that these policies will not disenfranchise transgender people legally. Director of the HHS Office for Civil Rights Roger Severino said that nondiscrimination protections will still cover trans folks based on their assigned gender at birth, as listed in section 1557.
“Everyone deserves to be treated with respect and according to the law,” Severino said. “Our dedication to our civil rights laws is as strong as ever.”
Melchert said the Trump administration has been pledging to gut the Obama-era protections for years. The final rule is confusing, he said, and has sowed panic within the LGBTQIA+ community, especially among transgender and nonbinary people.
“Because the Affordable Care Act does protect transgender people, I think it’s more about the panic and fear that it causes, which is a huge deterrent,” Melchert said.
Several advocacy groups have filed a lawsuit against HHS to block the healthcare rollbacks from taking effect, which was scheduled for Aug. 18. LGBTQIA+ legal advocacy group Lambda Legal filed a lawsuit June 22 on behalf of several LGBTQIA+ advocacy organizations, clinics and legal coalitions, as well as individual psychiatrists and physicians.
Confusion Over 2020 Rollbacks Could Exacerbate LGBTQIA+ Health Disparities
Part of what makes the final rule so concerning to medical professionals is the fact that LGBTQIA+ Americans, especially trans and non-binary people of color, are already less likely than cisgender and heterosexual Americans to seek healthcare.
According to the 2015 Trans Health Survey conducted by the National Center for Transgender Equality, 33% of trans Americans who had seen a health provider in the last year reported experiencing discrimination at least once, and 23% of trans Americans had foregone medical care in the past year for fear of transphobic discrimination.
Elizabeth* is a transgender woman in her twenties living in the U.S. South. (Her name has been changed to protect her identity.) She said the Trump administration’s final rule has reignited her fear of discrimination from healthcare providers.
“We got there back in 2016, and it seemed like I wouldn’t have to be afraid of the medical field, which was a big thing for me because I had history of being abused by professionals for who I was, and so it gave me some confidence and helped my paranoia and fear,” she said. “But now that it’s just been taken away, it's even scarier.”
Even if a medical provider doesn’t discriminate against trans and non-binary patients, insurance companies that choose to roll back coverage for trans people would effectively bar many from receiving critical care.
“Insurance companies are huge gatekeepers to care for so many people, and particularly for trans people, where we’ve had to fight endlessly to try to get insurance companies to eradicate blanket bans on coverage,” Melchert said.
The 2015 Trans Health Survey found that a quarter of trans people in the survey reported being discriminated against by their insurance provider regarding what care would be covered, including insurers refusing to change their name and gender in their records or denying them coverage for gender-affirming services.
Overall, due to discrimination within the medical field, transgender Americans are at higher risk for poor physical and mental health outcomes compared to the general population and the rest of the queer population. These disparities are especially pronounced in the South.
The 2019 Southern LGBTQ Health Survey produced by the Campaign for Southern Equality found that 40% of trans respondents reported being in fair or poor overall health, compared to 26% of cisgender respondents. Non-binary respondents were most likely to report fair or poor health.
Researchers gathered the data when the Obama-era protections were still in effect. Now that the explicit protections have been removed from the law, Melchert said many trans people fear that they will continue to be dissuaded from seeking care or prevented from accessing it altogether.
For Elizabeth, the worst part is that the reasoning doesn’t check out.
“They say it will be easier for medical professionals and such to know the (biological) sex. That doesn’t have anything to do with these protections,” she said. “I’m listed as a male-to-female transwoman to my doctor, how the f--- are they not gonna know I was born male? It doesn’t affect my healthcare negatively to have these protections, it helps me know that I am not going to be rejected or abused.”
Melchert said that the timing of the rollbacks only reinforced existing fear.
“This is such a targeted attack,” he said. “They published these rules on the anniversary of the Pulse massacre in Orlando, Florida, and during the same week that we found out we lost two Black transgender women, Dominique ‘Rem’mie’ Fells and Riah Milton. To me, it’s very clear that this is simply an attack on transgender people, people with uteruses, people of color, people who don’t speak English, like, all of these vulnerable communities.”
Just Three Days Later, a Supreme Court Case Changes the Game
Bostock v. Clayton County, the Supreme Court decision protecting LGBTQIA+ employees from being fired due to their sexuality or gender identity, could help challenge the HHS healthcare rollbacks and stop them from taking effect, advocates say.
In the majority opinion written by conservative Trump appointee Neil Gorsuch, the court ruled that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The case was brought forward by several LGBTQ+ employees who had been fired from their jobs as a result of being open about their identities.
Gerald Bostock was fired from his county job in Clayton County, Georgia, after he joined a gay recreational softball league; Donald Zarda was fired days after mentioning being gay at work; Aimee Stephens was fired after telling her employer that she intended to present as a woman at work as the next step in her gender transition. Stephens died one month to the day before the court ruled on her case.
Melchert is one of the advocates who sees positive implications from the case, especially related to the final rule on section 1557. He says it could be used to challenge the HHS final rule.
“While Clayton v. Bostock was specific to Title VII and their employment context, courts frequently look to Title VII to interpret other civil rights statutes, including Title IX, which is where the Affordable Care Act prohibition against sex discrimination comes from,” Melchert said.
Melchert also acknowledged that these court decisions come only after decades of advocacy and activism from the transgender community.
“Courts did not give us our rights. We have fought. Our rights are hard-fought and won, particularly off the backs of Black transgender women who have been leading the movement through their own struggle to survive and changing culture as a result,” he said. “We still have so much more work to do.”
