{"id":11276,"date":"2018-10-17T15:29:25","date_gmt":"2018-10-17T19:29:25","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=11276"},"modified":"2018-10-17T16:43:23","modified_gmt":"2018-10-17T20:43:23","slug":"the-trump-administration-threatens-transgender-peoples-health-care","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/the-trump-administration-threatens-transgender-peoples-health-care\/","title":{"rendered":"The Trump Administration Threatens Transgender People’s Health Care"},"content":{"rendered":"

The Trump Administration <\/span>plans to quietly undo a Department of Health and Human Services (HHS) regulation<\/span><\/a> banning health care providers and insurers from discriminating against trans patients.<\/span><\/p>\n

To this day, no federal law explicitly prohibits health care discrimination against LGBTQ people (no federal law explicitly prohibits employment or housing discrimination against <\/span> queer or transgender people either). But they \u00a0need one, badly. <\/span>A 2010 survey<\/span><\/a> found that <\/span>more than half <\/span><\/i>of LGBTQ people reported experiencing discrimination from their health care providers, such as being demeaned or harassed, blamed for their health status, or being straight up denied medically necessary care. Transgender people are especially at risk: in 2015, <\/span>one in four trans people<\/span><\/a> reported that they faced discrimination from their insurers over the course of a single year, including being denied insurance coverage just because of their gender identity.<\/span><\/p>\n

Transgender people should have clear, statutory protections from discrimination. But even without them, transgender patients have rights stemming from the Affordable Care Act\u2019s nondiscrimination provision, Section 1557.<\/span><\/p>\n

Section 1557 prohibits any federally-funded health care provider (including insurers, hospitals, and individual doctors) from discriminating against patients on the basis of race, national origin, disability, or sex. A growing consensus among federal courts recognizes discrimination against someone on the basis of their gender identity to be <\/span>sex-stereotyping<\/span><\/a> and thus <\/span>sex discrimination<\/span><\/a>. In other words, many courts recognize that laws banning sex discrimination also protect trans people.<\/span><\/p>\n

The Obama Administration affirmed that principle by <\/span>issuing regulations clarifying these protections. The regulations<\/span><\/a> explicitly banned anti-trans discrimination in health care, as well as discrimination against people who have had an abortion in the past. Contrary to conservative fear-mongering, these rules don\u2019t require any individual doctor to perform gender-reassignment surgery. What the HHS nondiscrimination rules <\/span>did <\/span><\/i>require is that doctors not \u00a0deny their patient medically necessary care simply because of their gender identity. The rule also requires that insurers cover trans people\u2019s healthcare equally. For example, it would prohibit insurers from denying transgender people coverage for a gender-affirming mastectomy when the same insurer would cover a mastectomy for a cisgender woman as part of a breast cancer treatment. Prior to these regulations, transgender people were routinely denied insurance coverage for medically necessary gender-affirming care: in 2015, <\/span>fifty-five percent<\/span><\/a> of transgender people who sought insurance coverage for gender-affirming surgeries were denied. <\/span><\/p>\n

But before the regulations could go into place, eight conservative state attorneys general and a group of religious hospitals sued the Obama Administration to block them. On December 31, 2016, District Court Judge Reed O\u2019Connor <\/span>issued a nationwide injunction<\/span><\/a> in <\/span>Franciscan Alliance v. Burwell<\/span><\/i>, enjoining the anti-discrimination regulations. These groups argued that the regulations violated religious health care providers\u2019 rights under the Religious Freedom and Restoration Act (RFRA). The notoriously anti-LGBTQ district judge agreed they were likely to succeed and blocked implementation nationwide. After the 2016 election, the Trump Administration announced that it would <\/span>reconsider the nondiscrimination regulations<\/span><\/a> \u2014\u00a0which advocates believe is a sure sign the Administration intends to gut them.<\/span><\/p>\n

HHS <\/span>scrubbed information<\/span><\/a> about Section 1557\u2019s protections for transgender people off their website this summer. Now, <\/span>the Hill <\/span><\/i>reports<\/span><\/a> that the Administration wants to roll back them back. Let\u2019s be clear: health care discrimination is quite literally life-threatening. Just ask Jay Kallio, a trans man whose doctor withheld information about his \u00a0<\/span>\u201cvery aggressive\u201d breast cancer<\/span><\/a>, apparently because the doctor had \u201ca real problem with [Jay\u2019s] transgender status.\u201d By rolling back these regulations, the Administration would actively enable discrimination that could cost transgender people their lives.<\/span><\/p>\n

Republicans (and insurance companies) say that transition-related care is \u201cunnecessary,\u201d when nothing could be further from the trut<\/span>h. B<\/span>oth <\/span>courts and medical experts<\/span><\/a> recognize that treatment is a <\/span>\u201cserious medical need.\u201d<\/span><\/a> By making it easier for insurers to drop transgender people\u2019s coverage, the right is sending the explicit message that trans people\u2019s health care is unnecessary, burdensome, and disposable \u2013 and their implicit message is that their dignity and survival is too.<\/span><\/p>\n

 <\/p>\n

Image Credit: National Center for Transgender Equality<\/em><\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

The Trump Administration plans to quietly undo a Department of Health and Human Services (HHS) regulation banning health care providers […]<\/p>\n","protected":false},"author":171,"featured_media":11277,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,33],"tags":[872,1465,1466,1285],"coauthors":[1383],"class_list":["post-11276","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-amicus","category-lgbtq-rights","tag-amicus","tag-healthcare-access","tag-healthcare-discrimination","tag-transgender-rights"],"jetpack_featured_media_url":"https:\/\/journals.law.harvard.edu\/crcl\/wp-content\/uploads\/sites\/80\/2018\/10\/transgender-human-rights.jpg","jetpack_shortlink":"https:\/\/wp.me\/peZrWS-2VS","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/11276","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/users\/171"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/comments?post=11276"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/11276\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/media\/11277"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/media?parent=11276"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/categories?post=11276"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/tags?post=11276"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/coauthors?post=11276"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}