LGBTQ Rights Watch: Transgender Healthcare

We’ve heard our members’ concerns about the recent anti-LGBTQ healthcare proposal set forth by the Trump Administration and remain dedicated to providing you with leadership on these critical issues. It is certainly true that we find ourselves in difficult and turbulent times regarding LGBTQ policy. On one hand, we are facing unexpected matters of grave concern such as the attempted removal of transgender health care protections by the Trump Administration, but on the other hand we have sudden and hard-fought victories, such as the recent Supreme Court decision to uphold equal workplace protections. There is reason to believe that the recent Supreme Court decision offers further precedent in the fight for health care equity. At the end of the day, no single administration can supersede federal law, so we will most likely find the solution to this health care crisis caused by administrative action through the courts.

On June 19, 2020, the Administration uploaded a new Rule onto the Federal Register amending Section 1557 of the Patient Protection and Affordable Care Act. These amendments are set to go into effect on August 18, 2020. The amendments seek to strip certain civil rights protections within the implementation of the Affordable Care Act program and to force a reliance instead on longstanding statutory interpretations of underlying civil rights statutes. In doing so, it is clear again that there remains significant room to oppose such actions based on the clearly established intentionality of civil rights law. Courts have historically interpreted these protections to include sexual and gender identity. This is further supported by the recent Supreme Court success regarding workplace protections for the transgender community.  

On Monday, June 22, Lambda Legal and Steptoe & Johnson LLP filed a lawsuit with the United States District Court for the District of Columbia challenging the Trump Administration's recent rollback of the provisions within the Affordable Care Act explicitly prohibiting discrimination in health care against patients who are transgender. The case makes clear that longstanding statutory interpretations of civil rights law does in fact support the transgender-inclusive language as currently written and that removing such language invites potential violations of anti-discrimination and equal protection laws by providers receiving federal funding.

While the Trump administration is moving to enact a rule change misinterpreting explicit protections for transgender people in health care by excluding protections from discrimination based on gender identity, it is important to know that these protections still exist under federal (and often state) law. Administrative rule-making cannot supersede standing civil rights law nor the anti-discrimination language within the 1557 federal statute. Typically administrative rules seek to further flush out such language by determining explicit implementation and application of law. By removing protective language via rulemaking, the Administration is thereby refusing to take part in the determination of application for the protections enacted by Congress that are still fully in force. Despite this, these protections, with or without the clarity and guidance of administrative rulemaking, still exist and it is still unlawful for providers to engage in acts of discrimination in a health care setting or in an insurance plan based on sex and gender identity. This repeal may embolden certain people to harass or deny care, but such conduct is still illegal. Counselors are encouraged to continue to operate under standing federal law and ethical guidelines for the profession.

For those ACA members wishing to take action on this issue, our advice is to utilize this information for editorials to local papers and to make public statements on your various social media and membership engagement channels in order to fight the narrative that this Administration can simply remove health care protections on their own. It is important to discourage providers from discriminating and to warn the public that discriminatory behavior on the basis of sex and gender identity violates not just ethical standards but standing federal law.

Further Resources:

1. American Counseling Association’s Code of Ethics: https://www.counseling.org/docs/default-source/ethics/2014-code-of-ethics.pdf?sfvrsn=2d58522c_4
2. Ethical Decision Making: https://www.counseling.org/knowledge-center/ethics/ethical-decision-making
3. State-by-state Road Map on Transgender Healthcare Policy:  https://www.hrc.org/state-maps/transgender-healthcare.