June has been a rollercoaster ride for the transgender community. Within days of each other, the month brought both an historic victory and significant setback — but there’s hope for the latter as I’ll explain.
As covered here last week, the U.S. Supreme Court ruled on June 15 that Title VII of the 1964 Civil Rights Act protects LGBT people in employment. The latter point is a critical distinction as the ruling’s reach is limited, but this is nonetheless a monumental victory. In particular, this is the first federal court acknowledgment and protection of the transgender community.
The ruling does not extend to public accommodations — stores, restaurants, hotels, etc. — and also not to healthcare. Which brings us to the setback.
A few days earlier on June 12 — the fourth anniversary of the Pulse Nightclub mass shooting, it’s worth noting — the Department of Health & Human Services (HHS) revoked protection of transgender people from the Affordable Care Act (ACA), also known as “Obamacare.”
During the Obama Administration, HHS instituted rules under Section 1557 stating that protection from discrimination on the basis of race, color, national origin, disability, age, and sex included inherently the protection of transgender people. The rule instituted in 2016 defined the term “sex” as including “one’s internal sense of gender.”
The Trump Administration has always set elimination of ACA as a primary goal. They’ve not been able thus far to completely destroy it, but persist in chipping away where they can. Revoking the protection of transgender people under Section 1557 is part of this continuing campaign. (The rule change is also a setback for abortion rights.)
Achille’s Heel of New HHS Rule
While the Supreme Court ruling three days later was focused on employment, not healthcare, that opinion presents an analysis that directly attacks the reasoning behind the new HHS rule.
In its June 12 press release, HHS said it “will enforce Section 1557 by returning to the government’s interpretation of sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.”
Now, with the Title VII ruling, this “government interpretation” cited by HHS would seem to be on shaky ground. The Court ruled on June 15 that “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex [emphasis added].”
For now the new HHS rule will stand — and transgender people will suffer horrifically a result. A court challenge will be required to reverse it and restore protection, and this fight has started.
The Issue Explained
In this video from a year ago, Ricardo Alonso-Zaldivar of the Associated Press explains the issue in detail.
HealthWatch Wisconsin posted this video about a year ago as well.
These are several news reports covering the HHS rule change.
Healthcare Challenges Facing Transgender People
These next videos look at the problems that transgender people face in healthcare and why the protections now being denied are so critical.
Title image is a screen grab from Reuters News.
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