The Trump administration appears ready to roll back health care protections for transgender people, and advocates are gearing up for a fight.
A proposed rule from the Department of Health and Human Services (HHS) that’s expected in the coming days would make it easier for doctors, hospitals and insurance companies to deny care or coverage to transgender patients, as well as women who have had abortions.
Coming on the heels of the military transgender ban, there are fears the administration could go even further and use the proposal as an opportunity to narrow the definition of gender.
The administration hinted in a recent court filing that new health regulations could be published as soon as next week. The rule is expected to weaken or eliminate an anti-discrimination provision enshrined in ObamaCare.
The provision says patients cannot be turned away because they are transgender, nor can they be denied coverage if they need a service that’s related to their transgender status.
Religious providers say they expect the administration’s rule to reinforce their right not to provide treatment that is against their beliefs.
Advocates, meanwhile, say they are concerned that the proposal could jeopardize the gains made in making sure transgender individuals receive equal access to care.
The proposal is “likely to send an even stronger signal that the administration endorses discrimination in health care against transgender people,” said Harper Jean Tobin, director of policy at the National Center for Transgender Equality.
The rule “won’t mean that overnight transgender people can’t get health care, but it will be a steady drip of allowing more discrimination,” Tobin said.
Chase Strangio, an attorney at the American Civil Liberties Union (ACLU), said access to health care can be a life or death circumstance, and the rule could have “catastrophic effects” if it is finalized.
“To have the government take a stand in favor of discrimination is deeply upsetting, ” Strangio said.
Once the proposal is released, a public comment period will follow. After that, a final rule will be issued.
As for what comes next, Strangio said the ACLU has had two years to prepare for that.
“If the final rule looks like the proposal we are anticipating, we and our partners will file suit as soon as possible,” Strangio said. “We can expect many legal challenges to any final rule.”
President Trump repeatedly pledged support for the LGBTQ community on the campaign trail in 2016. But advocates say the president’s words increasingly ring hollow, and his administration has been steadily eroding protections for transgender individuals.
For example, the military’s transgender ban took effect earlier this month, despite objections from advocacy groups and medical experts. And the Supreme Court on Monday said it would hear arguments this year on three cases concerning whether federal law applies to transgender identity.
Additionally, the Justice Department has argued that the main federal civil rights law doesn’t protect employees from discrimination based on gender identity. Former Attorney General Jeff Sessions in 2017 wrote a memo saying the law “does not encompass discrimination based on gender identity per se.”
The existing health care rule was first issued in 2016, six years after the 2010 Affordable Care Act was signed into law. The rule prohibited providers and insurers who receive federal money from denying treatment or coverage to anyone based on sex, gender identity or termination of pregnancy.
It also required doctors and hospitals to provide “medically necessary” services to transgender individuals, as long as those services were the same ones provided to other patients.
That rule was challenged in court by a group of Christian providers called the Franciscan Alliance. They argued the rule forces insurers to pay for abortions and compels doctors to perform gender transition services, even if they disagree with those services on moral or medical grounds.
A federal judge in Texas agreed with that argument, issuing a nationwide injunction in late 2016 that is still in effect. The ruling said Congress had outlawed discrimination based on “the biological differences between males and females” but not transgender status.
The new proposed rule has been under review at the White House Office of Management and Budget for more than a year, something that experts say is highly unusual.
That delay is causing confusion in the health care industry: ObamaCare’s nondiscrimination statute is the law, even if a rule implementing it has been put on hold.
In a court filing earlier this month, the administration said it would be publishing the proposal soon, a move that would likely affect the lawsuit in Texas.
Luke Goodrich, senior counsel with the Becket Fund for Religious Liberty and a lead attorney for the plaintiffs, said providers would be better served by a ruling from the judge. He said they just want to make sure their religious protections are upheld.
Katie Keith, a health care consultant and professor at Georgetown Law, said, “It’s going to be really hard for people to understand their rights in health care” while the confusion continues.
Tobin, of the National Center for Transgender Equality, said the uncertainty is having a harmful effect.
“At a time when the administration is trying to overturn the entire Affordable Care Act, at a time when the transgender ban in military is taking effect, transgender people are scared for their ability to get the health care they need, and that their providers know they need,” Tobin said.
Goodrich argues that providers won’t turn away patients just because they are transgender, so long as the doctors aren’t giving transition-related care or “being pressured to perform abortions.”
He said the plaintiffs have been treating transgender people for years and “won’t stop doing that, because they provide care for everyone. That’s not what the lawsuit is about in our view.”
Transgender advocates are concerned the administration will use the lawsuit as an excuse to redefine gender.
The New York Times last year reported that HHS proposed in a memo that government agencies adopt a narrower definition of gender in a way that would essentially end federal recognition of transgender individuals.
No rules have been issued, but advocates say administration officials have been telegraphing their views.
The HHS memo is a “blueprint” for discrimination, and the nondiscrimination proposal is a major part of it, Tobin said.
(Reporting by The Hill)
US Supreme Court Will Hear Three Cases That Will Affect LGBTQ Americans In The Workplace
The US Supreme Court has agreed to hear three cases that ask if existing US job discrimination laws should extend to sexual orientation and gender identity.
Two of the cases involve alleged discrimination of gay men by their employers, and the third examines the discrimination of a transgender person.
The cases will signal the direction of LGBT rights in the US, four years after gay marriage was legalised nationwide.
The 5-4 conservative-majority court is set to examine the cases this fall.
The first two cases have been consolidated as both address the purported discrimination of gay employees.
Donald Zarda, a skydiving instructor from New York, and Gerald Bostock, a former county child welfare services coordinator from Georgia, both alleged they were fired because of their sexual orientation.
The top court will also examine the Michigan case of funeral home employee Aimee Stephens, who claims she was fired because she is transgender.
In its listing of the cases, the Supreme Court cites Title VII of the Civil Rights Act of 1964, the section that prohibits employers from discriminating on the basis of race, colour, religion, sex and national origin.
But it does not explicitly reference sexual orientation or gender identity, and lower courts have been divided in recent years on whether the protections should apply to either category.
The US Justice Department under President Donald Trump has supported the employers in each case, arguing that existing federal civil rights protections do not extend to sexual orientation or gender identity.
This marks a change in course from the Obama administration, which supported treating LGBT discrimination as sex discrimination.
Some advocates for LGBT equality celebrated the opportunity for workplace protections to be cemented in law.
“The Supreme Court has an opportunity to clarify this area of law to ensure protections for LGBTQ people in many important areas of life”, said Sarah Warbelow, Human Rights Campaign legal director, in a statement.
“The growing legal consensus is that our nation’s civil rights laws do protect LGBTQ people against discrimination under sex nondiscrimination laws.”
In her statement Ms Warbelow urged Congress to pass protections for LGBT employees, “regardless” of the court’s decision.
In 2017, the Supreme Court chose not examine a case involving a lesbian working as a hospital security officer in Georgia, leaving a lower court ruling in place which sided with the woman’s employer.
The current bench, a 5-4 conservative majority, includes Trump appointees Justice Neil Gorsuch and Justice Brett Kavanaugh.
(Reporting by BBC News)
Read the petitions for certiorari that were granted in all three cases below:
Morehouse College To Take Transgender Students
ATLANTA, Ga. (AP) –The country’s only all-male historically black college will begin admitting transgender men next year, marking a major shift for the school at a time when higher education institutions around the nation are adopting more welcoming policies toward LGBT students.
Leaders of Morehouse College told The Associated Press that its board of trustees approved the policy on Saturday.
Transgender men will be allowed to enroll in the school for the first time in 2020. Students who identify as women but were born male cannot enroll, however, and anyone who transitions from male to female will not be automatically eligible to receive a degree from the institution.
Morehouse officials hailed the move as an important step toward a more inclusive campus while affirming its mission to educate and develop men.
“I think Morehouse having the courage to speak to issues of masculinity in today’s environment is important,” Morehouse College President David Thomas told The Associated Press. “For 152 years, the world has, in some way, seen Morehouse as the West Point of black male development.”
Morehouse is an iconic college that counts the Rev. Martin Luther King Jr., filmmaker Spike Lee and former Atlanta Mayor Maynard Jackson as its alumni. It bills itself as the “college of choice for black men” that has instilled leadership skills in generations of African American men.
More than 1,000 colleges and universities around the country have adopted some form of a transgender policy, including about two dozen historically black colleges. An increasing number of schools are updating admissions guidelines to ensure that transgender students have a welcoming experience, said Human Rights Commission spokeswoman Sarah McBride.
“Young people are incredibly supportive of LGBT equality, including transgender,” McBride said. “Schools are responding in kind. In many ways, our college campuses look like the country we’ll have in 10 or 15 years. There are a lot of reasons for hope.”
Morehouse becomes the first standalone all-male college in the country to adopt a transgender policy. Nationwide, there are only two other all-male colleges, Wabash College in Indiana and Hampden-Sydney College in Virginia. Minnesota’s St. John’s University, which enrolls only men but shares a co-ed academic program with the College of St. Benedict, also has a transgender policy.
Morehouse has had challenges around LGBT issues, most notably the 2002 attack of a 19-year-old student accused of beating a fellow student with a baseball bat who he mistakenly thought was making a sexual advance.
Gregory Love’s skull was fractured in the beating. Aaron Price was found guilty of assault and initially sentenced to 10 years in prison.
The incident was widely seen as reflective of a larger and pervasive attitude toward the LGBT community among African Americans.
Thomas acknowledged that historically black colleges and universities – mainly established after the Civil War with the help of religious institutions like the Baptist and Methodist churches – face added challenges in addressing issues of gender and sexuality because of opposition in black churches.
“I can’t speak for all HBCUs, but we know in the black church there has largely been silence on this issue,” Thomas said. “I can imagine there may be people who would say, ‘Why would you even raise this?’ I say to those people we live in an era now where silence on these issues is actually not helpful. For us, as a school for men, it’s important for us to set clear expectations about what that means. That’s what we’re trying to do with this policy.”
In 2009, the college updated its dress code, in part to address a handful of students who were wearing women’s clothing on campus. The following year, Morehouse held its first Gay Pride. Morehouse offered its first LGBT course in 2013 and has a scholars program named for civil and gay rights icon Bayard Rustin.
Spelman College, an all-woman HBCU next door to Morehouse, adopted a transgender policy in 2017, and the first transgender woman graduated in 2018.
Other HBCUs with transgender policies include Tuskegee University, Howard University, Florida A&M University, Southern University in Louisiana, North Carolina Central University and Morgan State University in Maryland.
Transgender Military Ban Went Into Effect At Midnight In America, Potentially Putting Thousands of Trans Soldiers At Risk Of Discharge
A memo from the Department of Defense was obtained by reporters outlining how the ban will be put into effect. Under its terms, the military will discharge or deny enlistment to anyone who won’t serve in the gender to which they were assigned at birth, or who are undergoing hormone therapy or other gender-confirmation procedures, the Associated Press reports.
“The order says the military services must implement the new policy in 30 days [by April 12], giving some individuals a short window of time to qualify for gender transition if needed,” according to the AP. “And it allows service secretaries to waive the policy on a case-by-case basis.”
Signed by David L. Norquist, who is serving as deputy defense secretary, the document appears to be largely in keeping with the memo prepared by then-Secretary of Defense James Mattis last year and approved by the White House. It says service members can be discharged due to a diagnosis of gender dysphoria if they are “unable or unwilling to adhere to all applicable standards, including the standards associated with his or her biological sex, or seeks transition to another gender.”
The Mattis memo came several months after Donald Trump announced, via Twitter, his intention to bar transgender people from military service, reversing the Obama administration’s decision to allow trans people to serve openly. The Trump policy is the subject of four court challenges, and judges had issued injunctions in these lawsuits to block the policy from going into effect while the suits are heard.
The ban’s implementation would mean the discharge of an estimated 13,700 transgender service members (out of an estimated 15,000 serving), the largest single layoff of trans people in history. And it would come despite testimony from service chiefs that “they had seen no discipline, morale or unit readiness problems with transgender troops serving openly in the military,” the AP reports.
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