Transgender Americans suffered a one-two punch this week when news broke that Trump would sign a "religious liberty" Executive Order and that the Department of Justice filed a motion to remand and stay in a case involving Section 1557 of the Affordable Care Act. Section 1557 contains important nondiscrimination language in the ACA; among other things, it ensures that women cannot be charged more for health insurance than men.
In 2016, the Department of Health and Human Services proposed a rule, "Nondiscrimination in Health Programs and Activities," that would further interpret the sex discrimination provisions of Section 1557 to cover discrimination on the basis of gender identity. The proposed rule was open for comment last year and ultimately finalized. With this Final Rule, transgender Americans would be guaranteed the right to medical care.
On December 31, 2016, hours before full implementation of the Final Rule was to take place, a federal judge in Texas enjoined enforcement of the rule's prohibition against discrimination "on the basis of gender identity or termination of pregnancy" in response to a lawsuit that specifically called out the language about transgender care and abortion care.
Transgender medical care is a complex field, but what is abundantly clear is that transgender Americans have been regularly denied treatment. Blanket exclusions for transition care are common, but even non-transition care is often denied to trans patients. Dubbed "Trans Broken Arm Syndrome," healthcare providers will deny trans people care under varying excuses, such as uncertain side effects or interactions with our hormone replacement regimens.
A 2015 survey of transgender Americans shows that 25% of respondants have experienced problems with insurance coverage because of their transgender status. Over half have reported being denied insurance coverage for transition care. One-in-three have reported negative experiences with doctors, such as reverse education (where the patient educates the doctor) or unwarranted touching (such as groping the breasts to "check progress").
Anecdotally, almost all of my transgender and gender non-conforming peers have experienced at least one of these experiences. I cannot go three days without seeing a new crowdfunding campaign on social media to pay basic living and medical expenses for trans people. Like all Americans, trans folks are obligated under financial penalty to carry health insurance. Unlike all other Americans, however, we're forced to buy insurance we may not even be able to use.
For those like myself who have the good fortune of transgender-inclusive insurance through their employer, the system is not without friction. A mere two weeks before surgery, I was informed that my surgeon was out-of-network and I would have to front the costs and file a claim, despite having a pre-authorization. This meant I had to materialize $16,500 with just a few days notice; If I couldn't, I'd risk being sent back to the start of a months-long waiting list. These costs stack with the other costs of being transgender. There are no gender specialists in my locale, so my therapy and endocrinology appointments are over an hour's drive each way. Not everyone has flexibility with their work schedule to accommodate this degree of inconvenience. In particular, Black working-class transgender people in my community and throughout the country are dramatically underserved.
When the Department of Justice filed the motion to remand the rule back to the HHS for reinterpretation, it was the coup de grace for hope for equitable medical care. Without federal enforcement from the DOJ, trans people experiencing discrimination have to resort to private lawsuits to seek justice. Although organizations like the ACLU and Lambda Legal are willing to help, the reality is that they do not have the bandwidth to help the approximately 180,000 transgender people in this country who have experienced medical care denials simply for being who they are.
In effect, trans folks' rights to medical care have been all but eliminated.
The DOJ's decision to not enforce the transgender discrimination interpretation of Section 1557 doesn't materially change much in the day-to-day experience of trans folks—once the federal judge enjoined the implementation a mere three weeks before President Trump's inauguration, it became clear that the fight for trans equality was being reset to a previous state. And while there are promising lawsuits working their way through the courts, the vast majority of trans people cannot afford to wait on the legal system. Nor should the approach of patching trans rights into the system through litigation be seen as anything but a last resort.
The Section 1557 news was overshadowed by the impending religious liberty Executive Order and by the impending vote on the AHCA. But it cannot be ignored, because even if the AHCA vote fails to pass the Senate and even if the Executive Order gets blocked in federal court, trans Americans will have still lost a critical bit of regulation necessary to ensure our ability to live fully in American society. In the meantime, we will continue to survive how we always have: by relying on each other, sharing knowledge and information, and seeking allyship from those unwilling to let some of our most vulnerable people suffer in the shadows.