Bloomberg Law
Aug. 18, 2020, 8:01 AM

INSIGHT: Trump’s Anti-Trans Measures Protect Prejudice in Covid-19 Era

Kay Van Wey
Kay Van Wey
Van Wey, Presby & Williams

The Trump administration in June reversed a Department of Health and Human Services rule, erasing protections for transgender patients against discrimination by doctors, hospitals, and health insurance companies.

Adding insult to injury, the announcement was made during Pride Month and on the fourth anniversary of the Pulse nightclub shooting, which left 49 victims—including many LGBTQ individuals—dead.

In a late Aug. 17 decision, Judge Frederick Block of the U.S. District Court for the Eastern District of New York halted the HHS from enforcing the rule that stripped gender identity and sex stereotyping from anti-discrimination protections under the Affordable Care Act. This was one of a number of lawsuits filed against the rule.

Anti-LGBTQ Legal Protections Have Been Attempted Since 2016

Under the Obama administration and Section 1557 of the Affordable Care Act, civil rights protections in health care were established to ban discrimination based on “gender identity.” Health-care providers and health insurance companies were thus legally required to provide medically appropriate treatment for transgender patients.

In December 2016, conservative federal Judge Reed O’Connor issued a preliminary injunction against Section 1557, to set in motion the ability to once again discriminate against transgender people, and it was reopened in 2018.

In 2018, the HHS adopted a uniform definition of gender under Title IX, as “either male or female, unchangeable, and determined by the genitals that a person is born with,” according to the New York Times. Even at the state level this year, Idaho set forth two anti-trans laws in March, the Department of Justice sought to ban transgender girls from high school sports in Connecticut, and criminal penalties for transition care to trans minors was considered in South Carolina.

First proposed in May 2019, Trump’s new rule will return to the “government’s interpretation of sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology,” according to the HHS press release.

Health-care providers can now turn away anyone they perceive as trans or gay and can refuse to respect someone’s gender identity in making room assignments. Insurance companies can now enforce bans on hormone replacement therapy, gender-affirming surgery, and all transition-related medical care.

Instilling Fear in Extremely Vulnerable Populations

These draconian policies and vicious attacks on the LGBTQ+ community have instilled paralyzing fear among transgender patients, particularly because it’s the worst time to have health-care rights removed. The 1.4 million adults in the U.S. who identify as transgender will now walk into a doctor’s office terrified they might be treated unfairly, won’t get adequate care, or will be turned away.

Or maybe they won’t go at all. Unfortunately, even if hospitals don’t end up acting prejudiced, because discrimination is now legal, it will likely deter the transgender community from seeking care or getting tested for Covid-19. This is dangerous, considering that transgender populations are at an especially increased risk to contracting Covid-19.

In addition, there is the lingering fear that all the progress the Obama administration made toward transgender rights in health care will be completely reversed. Prior to historic reforms in 2015 following the landmark legislation that would allow same-sex couples to marry, the prospects of getting quality health care as a transgender adult were slim to none.

In a recent report from UCLA, data from the U.S. Transgender Population Health Survey was used to identify characteristics that may increase vulnerability to Covid-19 for transgender adults. What the report found was quite sobering:

  • 319,800 transgender adults are immunocompromised and have one or more of the following conditions: asthma, diabetes, heart disease, or HIV;
  • 217,000 transgender adults are 65 or older;
  • 450,400 transgender adults could not go to the doctor last year because they could not afford it;
  • 137,600 transgender adults do not have health insurance; and
  • 667,100 transgender adults live below 200 percent of the poverty line.

Under this new rule and given deep-rooted prejudices that they already face, it’s not far-fetched to say that transgender populations could be pushed farther down the list for Covid-19 treatment or ventilators. Trans patients are now at the mercy of a medical professional’s personal beliefs.

What Can Be Done?

As soon as the rule was released, the Human Rights Campaign announced intentions to sue the Trump administration. Even within an hour, LGBT activist group Lambda Legal said it would absolutely challenge this law in court, and it did.

Other organizations like the Harvard Center for Health Law, the National Women’s Law Center, and the Transgender Legal Defense and Education Fund are teaming up to fight against the ruling.

House Democrats have vehemently expressed their opposition, and under the Congressional Review Act, they could repeal it within 60 legislative days (days Congress is actually in session). This would require Democrats to retain control of the House and win the White House and Senate.

What is absolutely certain? This ruling will not go down without a fight.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Kay Van Wey is a veteran board-certified personal injury trial lawyer and patient safety advocate with over 30 years of experience. She’s been named a Texas Super Lawyer by her peers for 15 consecutive years and was voted a D Magazine Best Personal Injury Lawyer in 2016 and 2018.

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