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)
Queer Eye’s Jonathan Van Ness Comes Out As Nonbinary
Jonathan Van Ness, the grooming guy from the Netflix makeover show Queer Eye, recently came out as nonbinary, clarifying that “he prefers he/him pronouns, but does not identify as a ‘man.’”
As a child, Van Ness used to put on his mother’s makeup, high heels and scarves while playing in his family’s basement, but he never felt he could wear such things to school where he was bullied for being different.
“I didn’t really put [my dressing] that together with ‘gender nonconforming’ or ‘nonbinary’ or owning that as an identity until recently,” Van Ness said. He continued:
He said the visibility of social media has shown people the options they have for expressing their own gender and added that most of his role models are women including his mother, grandmother and pop divas like Gloria Estefan, Celine Dion, Aretha Franklin, Shania Twain, and Mariah Carey.
What does it mean to be non-binary?
According to the National Center for Transgender Equality (NCTE), non-binary and genderqueer identity are labels that refer to people who “don’t identify with any gender” or whose “gender changes over time.” The word non-binary literally means someone whose gender falls outside of the male-or-female binary.
The NCTE points out that non-binary people have existed in societies throughout world history, not all non-binary people get gender-affirmation surgeries and non-binary isn’t the same thing as being trans or intersex (although some trans and intersex people do identify as non-binary or genderqueer).
The organization also says that allies should be respectful of non-binary and genderqueer people’s chosen names and pronouns, recognizing that they don’t need to “understand what it means for someone to be non-binary to respect them.” Most of all, allies should advocate for policies that allow non-binary people to live, dress and have their gender expression respected at work, at school and public spaces, especially bathrooms.
“There’s no one way to be non-binary,” the NCTE writes. “The best way to understand what it’s like to be non-binary is to talk with non-binary people and listen to their stories.”
(Reporting by Queerty)
Connecticut Lawmakers Move To Ban ‘Gay Panic Defense’
HARTFORD, Conn. (AP) — Criminal defendants in Connecticut would be barred from claiming as their sole legal defense that they panicked after learning about their victim’s sexual orientation.
The state House of Representatives approved legislation Tuesday preventing defendants from using the so-called gay panic defense. That defense blames a violent reaction on discovering a victim’s actual or perceived sexual orientation or gender identity or expression.
The legislation already cleared the Senate and now moves to the governor.
Defense attorneys unsuccessfully attempted to use the “gay panic defense” in the case of Matthew Shepard, the college student beaten to death by two men in Wyoming in 1998. The judge would not allow it, and those men were convicted.
Supreme Court Rejects Appeal Over Transgender Bathrooms
On May 28, the Supreme Court rejected an appeal filed by teenagers in Pennsylvania who opposed a school district policy allowing students to use the locker rooms and bathrooms that correspond with their gender identity. As CNN reports, the Supreme Court’s decision to leave a lower court’s ruling in place means that Boyertown School District’s current policy, which allows transgender students to choose which facilities they use, will stay in place.
Reuters reports that the six students opposing the policy argued that allowing their transgender peers to use the bathrooms corresponding with their gender identity would be in violation of Title IX and privacy. The students are represented by Alliance Defending Freedom, a conservative Christian organization that is considered a hate group by the Southern Poverty Law Center. The SPLC calls the firm “one of the most influential groups informing the administration’s attack on LGBT rights.”
According to CNN, the plaintiffs’ lawyers argued that “forcing a teenager to share a locker room or restroom with a member of the opposite sex can cause embarrassment and distress.” Boyertown School District’s policy allows students to choose which bathrooms they use on a case by case basis; before a student is allowed to use a facility with a label that differs from the gender they were assigned at birth, they are required to meet with a guidance counselor.
Lawyers for the school district say that they have this policy in place because they believe “that transgender students should have the right to use school bathroom and locker facilities on the same basis as non-transgender students.”
The Supreme Court issued their decision without comment, but many people are viewing the court’s rejection of the appeal as the latest positive development in a nationwide legal battle for transgender rights. In a tweet on Tuesday, the American Civil Liberties Union announced that the Supreme Court’s rejection of the appeal is a “victory for trans students and educators nationwide.”
“Boyertown’s schools chose to be inclusive and welcoming of transgender students in 2016, a decision the courts have affirmed again and again,” the ACLU added in a statement to CNBC. “This lawsuit sought to reverse that hard-won progress by excluding transgender students from school facilities that other students use. That would have increased the stigma and discrimination that transgender students already face.”
The rejection of the plaintiffs’ appeal comes as the Trump administration continues to roll back anti-discrimination protections for transgender Americans. Back in February 2017, the administration removed an Obama-era guidance that encouraged schools toallow students to use the bathrooms and locker rooms that corresponded with their gender identity. More recently, on April 12, the Supreme Court upheld a Trump policy that bans people who identify as transgender from serving in the armed forces, which will affect an estimated 14,700 troops, according to the Palm Center.
And on May 24, the administration announced that it plans to remove Obama-era protections against transgender people seeking medical care, by removing gender identity from discrimination “on the basis of sex.” In response, the National Center for Transgender Equality called the proposal “an escalation of its dangerous attacks against transgender people.”
(Reporting by Mic)
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