This blog post was written by Brenna Gautam, Research Assistant at the O’Neill Institute and a 3L at Georgetown University Law Center.
On October 11, 2018, a jury awarded two transgender women $780,000 after a federal judge ruled that Wisconsin’s ban on gender treatment in state employee insurance plans violates federal law. The plaintiffs can now use these funds to cover the cost of surgery relating to gender transition, a treatment that could be life-saving; one plaintiff shared that being denied transition-related care caused depression and even prompted thoughts of taking her own life. Yet while the law continues to affirm protections, the current political landscape threatens the future of safe, affirming health care for transgender persons.
Under Section 1557 of H.R. 3590, anyone seeking medical treatment from federally funded providers is protected from discrimination on the basis of sex. In 2016, the Department of Health and Human Services (HHS) issued a final rule, clarifying that these “on the basis of sex” protections extend to prohibit “gender identity discrimination.”
In late 2016, Franciscan healthcare providers argued that providing transgender treatment and reproductive care violated their moral and religious beliefs. Yet overwhelmingly, despite the Texas court’s injunction on the 2016 HHS final rule in Franciscan Alliance v. Burwell, federal courts have nevertheless rejected religious objection arguments and held that the statutory language of Section 1557 of H.R. 3590 protects transgender persons from medical discrimination, regardless of the HHS final rule.
For example, the recent Wisconsin ruling held that the state’s prohibition of gender treatment coverage violated the statutory language of Section 1557, the Civil Rights Act of 1964, and the Equal Protection Clause of the 14th Amendment. In September 2018, a Minnesota federal judge similarly ruled that the statutory text of Section 1557 extends protections to transgender and gender non-conforming people. In September 2017, a federal district court in California allowed a mother’s claim to proceed based on Section 1557 despite the ruling in Franciscan Alliance; the mother’s transgender son had died by suicide after being allegedly mistreated at a hospital in San Diego.
However, administrative regulations threaten to undermine these legal protections. For example, in January 2018, HHS proposed a rule that would expand the discretion for religious or moral objectors to refuse care for LGBT people in healthcare settings. Because the proposed rule fails to define terms like “moral convictions,” it could result in a sweeping ability for objectors to couch any prejudices in moral or religious terms.
Additionally, HHS formed a new agency division in January 2018 that investigates complaints filed by healthcare entities on the basis of conscience and religion. In justifying the new division, HHS officials cited 36 complaints received by healthcare entities alleging infringements upon religion or conscience; by contrast, in 2017, the Office of Civil Rights received more than 30,000 complaints from patients alleging breaches of privacy or discrimination.
More generally, the national political conversation around Congressional repeal of H.R. 3590 threatens transgender people, as rolling back Section 1557 could eliminate vital nondiscrimination protections.
Nearly 30 percent of transgender patients report delaying or not seeking care due to discrimination and stigmatization, according to a 2016 report in the journal Medical Care. For these individuals, hospital visits can be a source of verbal harassment, physical assault, or denial of equal treatment. Moreover, consequences of failing to seek out medical care based on fear of discrimination can be life threatening. A 2014 Williams Institute study on transgender suicidality showed that 60 percent of transgender patients who are unable to find physicians have attempted suicide.
The emotional impact of being stigmatized based on gender identity is concerning enough, but to be denied medical care based on that identity is particularly troubling because the medical community is supposed to be a field concerned with caring for people. Transgender people are people. Thus, it is deeply unsettling to realize that medical professionals–albeit, a minority of medical professionals–are willing to refuse care and compassion for transgender patients. As Naya Taylor, a transgender woman who sued on behalf of medical discrimination, stated: “When [doctors] said, ‘we don’t have to treat people like you,’ I felt like the smallest, most insignificant person in the world.”
In conclusion, transgender individuals have not lost the right to go to court over discrimination related to hormone treatment or reassignment surgery, and the broader medical still recognizes the importance of nondiscrimination: the American Medical Association Journal of Ethics has stated that doctors posses a responsibility under the Hippocratic Oath to reduce discrimination against transgender persons. However, today’s political climate poses obstacles to a full and lasting realization of this right.
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.