At a time when access to quality healthcare is more important than ever, the Trump Administration on June 12 finalised a regulation that unravels anti-discrimination protections for transgender people in the health care sector.
The Department of Health and Human Services will redefine gender as a biological and immutable condition determined at birth. This peels back the Department’s stated position since 2016, which extended beyond biological sex to include myriad identities based on a person’s internal sense of their gender. The relevant provision—Section 1557, also known as the Health Care Rights Law—“prohibits discrimination based on race, color, sex, age, origin or disability within health programs.” According to Health and Human Services, the policy change will limit the overbroad interpretation of Section 1557 and will reduce confusion about the legal meaning of “sex determination.”
Courts differ about how to interpret the rule. The Northern District of Texas held that the law violated both the Administrative Procedure Act and the Religious Freedom Protection Act, and the court granted a nationwide preliminary injunction that barred Health and Human Services from enforcing Section 1557’s terms. The District of Minnesota, however, has held the contrary. Nonetheless, with a national injunction, subsequent rulings have lost significance.
The United States Constitution does not allow for an ‘express’ right to health insurance, and the Supreme Court has never viewed the Constitution as ensuring the ability of the government to offer health coverage to those who cannot afford it. Nevertheless, a state seeking to uphold sex discrimination bears the burden of demonstrating “an exceedingly persuasive justification” for the challenged classification. That protection also underpins the International Convention of Civil and Political Rights, which prescribes non-discrimination and equal treatment.
However, now that Health and Human Services has announced that it will not investigate allegations of violence against transgender people, recent developments in healthcare provision and transgender rights are serious concerns for the transgender community.
Despite cries to prohibit discrimination based on gender identity and sexual orientation, some existing mechanisms can provide real protection in some circumstances. State and local laws that prohibit sex discrimination in health care facilities exist throughout the US. The Joint Commission hospital accreditation standards also require hospitals to have internal policies that prohibit discrimination based on gender identity and sexual orientation. Medicare and Medicaid regulations also protect against transgender discrimination in visitation practices or in recognising a patient’s designated decision-maker.
The transgender community welcomed the recent Supreme Court’s ruling in Bostock v Clayton County, which prohibited employers from discriminating against employees based on sex as well as gender identities. In addition, in Regents of the University of California v Bakke, the Court had indicated that Congress agreed to change Title VI’s purpose in its entirety to “independently prescribe actions that the Constitution does not.” Such indications suggest that the Court could interpret Title VI to authorise review of sex discrimination claims, even though Title VI is formally silent about “sex.”
Skirmishes between the judicial, legislative, and executive branches continue. Just last month, 24 State Attorneys General filed a lawsuit the Trump administration’s new healthcare rule. Whatever else 2020 holds — especially as an election looms — the protection of transgender rights will remain in full view.
Note: This article gives the views of the authors, and not the position of the Social Policy Blog, nor of the London School of Economics.