Trump’s revoking of historic Obama-era protections for transgender populations is a whole new level of cruelty under the threat of COVID-19.
Last month, the Trump administration announced a reversal of a Department of Health and Human Services (HHS) administrative rule, erasing protections for transgender patients against discrimination by doctors, hospitals, and health insurance companies. Adding insult to injury, the announcement was made during Pride Month and on the fourth anniversary of the Pulse nightclub shooting, which left 49 victims — including many LGBT individuals — dead.
Anti-LGBTQ Legal Protections Have Been Attempted Since 2016
Under the Obama administration and Section 1557 of the Affordable Care Act, civil rights protections in healthcare were established to ban discrimination based on “gender identity.” Healthcare providers and health insurance companies were thus required by law to provide medically appropriate treatment for transgender patients. Additionally, a series of broad Obama-era regulations had loosened the legal concept of gender, recognizing it primarily as a choice and not determined by the sex at birth.
Since 2016, the Trump administration’s war on reversing those regulations and its attack on LGBT civil rights have been blatant. In December 2016, conservative federal judge Reed O’Connor issued a preliminary injunction against Section 1557, to set in motion the ability to once again discriminate against transgender people, and it was reopened in 2018. This same judge was also responsible for reversing rules regarding access to abortion and birth control.
Also in 2018, the Department of Health and Human Services set forth to adopt an explicit and uniform definition of gender under Title IX, as “either male or female, unchangeable, and determined by the genitals that a person is born with,” according to The New York Times. Even at the state level this year, Idaho set forth two anti-trans laws in March, the Department of Justice sought to ban trans girls from high school sports in Connecticut, and criminal penalties for transition care to trans minors were being considered in South Carolina.
First proposed in May 2019, Trump’s new law will return 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,” according to the HHS press release. Healthcare providers can now turn away anyone they perceive as trans or gay. Hospitals will now be permitted to refuse to respect someone’s gender identity in making room assignments. Insurance companies can now enforce bans on hormone replacement therapy, gender-affirming surgery, and all transition-related medical care.
Instilling Fear in Extremely Vulnerable Populations Amid the Threat of COVID-19
These draconian policies and vicious attacks on the LGBT community have instilled paralyzing fear among transgender patients, particularly because it’s the worst time to have healthcare rights removed. The 1.4 million adults in the U.S. who identify as transgender will now walk into a doctor’s office terrified that they might be treated unfairly, won’t get adequate care, or will be turned away.
Or maybe they won’t go at all. Unfortunately, even if hospitals don’t end up acting prejudiced, the mere fact that discrimination is now legal will absolutely drive reluctancy in the trans community to seek care or get tested for COVID-19. This is dangerous, considering that transgender populations are at an especially increased risk of contracting COVID-19 due to a variety of factors.
In a recent report from UCLA, data from the U.S. Transgender Population Health Survey was used to identify characteristics that may increase vulnerability to COVID-19 for transgender adults. What the report found was quite sobering:
319,800 transgender adults are immunocompromised and have one or more of the following conditions: asthma, diabetes, heart disease, or HIV
217,000 transgender adults are 65 or older
450,400 transgender adults could not go to the doctor last year because they could not afford it
137,600 transgender adults do not have health insurance
667,100 transgender adults live below 200 percent of the poverty line
It’s literally a matter of life and death. Under this new legislation, and given deep-rooted prejudices that they already face, it’s not far-fetched to say that transgender populations could even be pushed farther down the list for COVID-19 treatment or ventilators. It’s a terrifying ordeal this law has caused. Trans patients are at the mercy of a medical professional’s personal beliefs.
Undoing Historic Civil Rights Rulings Made under the Obama Administration
In addition, there is the lingering fear that all the progress the Obama administration made toward transgender rights in healthcare will be completely reversed. Prior to historic reforms in 2015 following the landmark legislation that would allow same-sex couples to marry, the prospects of getting quality healthcare as a transgender adult were slim to none. One of the more renowned cases of a trans male who was denied care was Robert Eads, who died in 1999 when a doctor refused to treat him for ovarian cancer (he recommended Eads see a therapist instead).
Then, in 2010, health data was released on the largest-ever study of transgender and gender non-conforming people in the United States. The survey found:
• Nearly 1 in 5 (19%) reported being refused care outright because they were transgender or gender non-conforming.
• 28% of respondents postponed necessary medical care when sick or injured due to discrimination and disrespect.
• 28% of respondents were subjected to harassment in medical settings.
• 50% of the sample reported having to teach their medical providers about transgender care.
• Over 25% of respondents reported misusing drugs or alcohol to cope with the discrimination they faced due to their gender identity or expression.
• 41% of respondents reported attempting suicide, compared to 1.6% of the general population.
Then, the Obama administration slowly but surely worked toward making several changes to ensure these statistics would not continue, including:
• July 2010: The Department of Housing and Urban Development announced that trans individuals can file housing discrimination lawsuits and that they would now be covered under the Fair Housing Act’s ban on gender discrimination.
• August 2012: The Department of Health and Human Services announced it would interpret discrimination on the basis of transgender status as a form of sex discrimination.
• April 2014: The Department of Education announced that transgender students were protected under Title IX’s prohibition of sex discrimination.
• April 2017: The Department of Justice and the Department of Education informed all U.S. school districts that transgender students should be allowed to use bathrooms consistent with their gender identity, rather than the gender they were assigned at birth.
Mara Keisling, executive director of the National Center for Transgender Equality (NCTE) called Barack Obama the “best president for transgender rights, and nobody else is in second place,” in an interview for CBS News.
What Can Be Done Moving Forward?
As soon as the law was released, the Human Rights Campaign announced intentions to sue the Trump administration. Even within an hour, LGBT activist group Lambda Legal said it will absolutely challenge this law in court. Other organizations like the Harvard Center for Health Law, the National Women’s Law Center, and the Transgender Legal Defense and Education Fund are teaming up to fight against the ruling.
House Democrats have vehemently expressed their opposition, and according to the Congressional Review Act, it is possible to overturn the ruling as long as it falls within the 60-day legislative deadline.
What is absolutely certain? This ruling will not go down without a fight.
As founder and partner of VWPW, Kay Van Wey is a top Dallas Board Certified Medical Malpractice and Personal Injury Lawyer. She has been named a Texas Super Lawyer for 15 consecutive years, a D-Best Lawyer by D Magazine, and a Texas Trial Legend by the Dallas Bar Association. She has also been named to the Million Dollar and Multi-Million Dollar Advocates Forum.