The Trump administration on Friday finalized a rule that would remove nondiscrimination protections for LGBTQ people when it comes to health care and health insurance.
It is one of many rules and regulations put forward by the Trump administration that defines “sex discrimination” as only applying when someone faces discrimination for being female or male, and does not protect people from discrimination on the basis of sexual orientation or gender identity.
The rule focuses on nondiscrimination protections laid out in Section 1557 of the Affordable Care Act. That federal law established that it is illegal to discriminate on the basis of “race, color, national origin, sex, age or disability in certain health programs and activities.” In 2016, an Obama-era rule explained that protections regarding “sex” encompass those based on gender identity, which it defined as “male, female, neither, or a combination of male and female.”
Severino said at the time, “We’re going back to the plain meaning of those terms, which is based on biological sex. “Under the new rule, a transgender person could, for example, be refused care for a checkup at a doctor’s office, said Lindsey Dawson, associate director of HIV policy at the Kaiser Family Foundation.
Critics worry about access to health care, especially in a pandemic
Mari Brighe, a freelance writer and transgender woman who lives outside Detroit, called the rule “terrifying.”
“I can relate a decade of stories about getting terrible health care because I’m trans,” Brighe said. “We walk into any given health care situation not knowing whether doctors are going to treat us well, whether we’re going to get high quality care, whether any given, random health care person is going to be terrible to us.”
Once, when seriously ill with the flu and having trouble breathing, Brighe recalled, she was sent home from a hospital in rural New York and ended up driving 90 minutes and crossing a lake by ferry to get treatment at a hospital in Vermont.
She said worries now that the rule could make transgender people — who are already reluctant to seek medical care — all the more likely to avoid coronavirus treatment and testing.
“The way that [the rule] reads to me is that people could refuse to collect your COVID specimen because they don’t want to touch a trans person,” she said. “That’s a recipe for spreading a really terrible pandemic among a really, really vulnerable population.”
“I can’t help but think about how this impacts black trans people,” said Gaynor, the political science professor, who noted that African American transgender people are “arguably the most marginalized group in our country.”
African Americans who get COVID-19 are much more likely to die from that disease than are white Americans, statistics show. A recent report from the Williams Institute at UCLA estimates that hundreds of thousands of transgender adults may be especially vulnerable to COVID-19 because they have an underlying condition, are over 65, lack health insurance or live in poverty.
For black transgender people, Gaynor said, “it’s layers of oppression — it’s transphobia on top of racism on top of economic oppression.” All of that could affect their ability to get health care during the pandemic, she said, which in turn could have public health implications for all.
Katie Keith, a health law professor at Georgetown University, noted that the new rule could have another chilling effect. “Even if no one actually does discriminate more because of the rule, you’ve created a fear,” Keith said.
She pointed to research documenting how the “public charge” rule — which penalizes people who are seeking to become citizens if they use public safety net programs such as nutrition and housing assistance — affected people and programs outside the scope of the rule itself.
“When they target these vulnerable populations, you see less enrollment in health insurance,” she said. “You see folks scared to go to the doctor.”
“I don’t think any reasonable person wants to see transgender people not enrolling in health care plans and not having access to health care,” Anderson said. What’s needed, he said, is a “finer grain” approach to this issue — such as a new law in Congress that protects LGTBQ people from health care discrimination generally but carves out protection for providers to refuse to provide care related to sex reassignment.
NPR June 12, 2020
