12 June 2020 — If you identify as LGBTQ, especially queer, trans or nonbinary, the Trump administration finalized a rule that would remove the protections of your right not to be discriminated on sexual orientation nor gender identity in health care and health insurance. The nondiscrimination protections are part of Section 1557 of the 2010 Affordable Care Act and, in 2016, the Obama administration expanded the definition of “sex discrimination” to also include folks who do not identify as either gender in a cisgender sense or a combination of both binary genders.
Roger Severino, the Director of the Office for Civil Rights in the Department of Health and Human Services, announced that the rule will go in effect by mid-August of this year (Simmons-Duffin, 2020). Proponents argue that it is necessary to roll back the nondiscrimination protections for two reasons: (1) it signified an overreach of power in the Obama administration and (2) it reduces confusion about the legal definition of “sex discrimination” (Simmons-Duffin, 2020). Opponents assert that this new rule would cause further harm to trans, nonbinary, and gender nonconforming folks.
With this new rule, if you are trans, doctors have less of an incentive not to discriminate against you. This is a problem if you are a trans man, for example, and you have ovarian cancer and you could get denied access to the treatment you need. It also applies if you are a trans woman and you need treatment for prostate cancer. Of course, even with this new rule, you can still sue for discrimination in medical care or denial of necessary health care, but it would be more complicated. It primarily depends on where you live. Some states have better protections than others for trans health care, and some courts are more progressive than others in terms of understanding that trans health care is a civil right.
The COVID-19 pandemic is not going anytime soon. It is already difficult as is for trans folks (most especially Black trans people) to find medical care with someone who is knowledgeable in working with trans patients, and trans folks might be more likely to avoid COVID-19 testing and treatment. It is well reported that Blacks who get sick with COVID-19 are far more likely to die from it compared to Whites. The Williams Institute’s recent report also states that trans adults are particularly vulnerable to COVID-19 because they do not have health insurance, live in poverty, are over 65 years old, or have an underlying condition. The rule hits Black trans people the hardest.
Calls are emerging for a new separate law in Congress that simultaneously protects LGBTQ people from health care discrimination and protects the religious freedoms of providers who want to refrain from working with trans, nonbinary, and gender nonconforming patients.
It was not even an hour after the U.S. Department of Health and Human Services’ press release of the finalized rule before Lambda Legal announced it would challenge it in court (Simmons-Duffin, 2020). We will see whether the rule is considered unconstitutional, especially now that the U.S. Supreme Court ruled employers cannot discriminate employees on the basis of their LGBTQ+ identity.