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The Policy

On the four-year anniversary of the Pulse Nightclub shooting, where 49 LGBTQ+ (majority latinx) individuals were shot and killed in a Florida night club, the Trump Administration finalized a rule rescinding nondiscrimination protections for LGBTQ+ people in healthcare. Section 1557 of the Affordable Care Act (ACA), enacted in 2010, “prohibits discrimination on the basis of race, color, national origin, sex, age, or disabilities in certain health programs or activities”. In 2016, under President Obama, the rule redefined discrimination “on the basis of sex” to include gender identity and termination of pregnancy, with gender identity being defined as “one’s internal sense of gender, which may be male, female, or neither, or a combination of male and female”.

The reversal of this rule, follows prior regulations of the Trump Administration that defines “sex discrimination” as only applying when someone faces discrimination for being male or female, and does not protect people from discrimination on the basis of sexual orientation or gender identity. While the previous 2016 rule did not include sexual orientation in the definition of sex, gender identity was, and such a reversal severely impacts the protections of those who do not identify as what some would define as “traditionally” or biologically male or female. With such changes, the health care system is expected to save over $2.9 million. The rule is set to go in effect by mid-August.

This Rule change comes days prior to the monumental Supreme Court ruling protecting LGBTQ+ rights in the workplace. In a 6-3 decision that stated, “An employer who fires an individual merely for being gay or transgender defies the law”. The Supreme Court decided on the cases of a skydiving instructor who was fired in 2010 after he told a client he was gay, a funeral home director who was fired after she came out as transgender in 2013, and a child-aid worker who was fired, also in 2013, after he joined a gay softball league.

Analysis:

The key reason driving , given by the Trump administration, the need for Section 1557’s amendment is cost efficiency. Cutting costs is a frequently used defense in instances where civil rights are impacted, or where minorities are severely affected. The Rule’s finalization is expected to save roughly $2.9 billion over the next five years. While this may benefit the pockets of Americans, it will most certainly negatively impact LGBTQ+ individuals, specifically, trans individuals.

Supporters of the change point to benefits of cost effectiveness and the need for correcting the “blatant executive overreach by President Obama”. Additionally, supporters claim the change will also reduce confusion regarding the legal meaning of “sex discrimination”. Critics argue the rule will further harm one of the most vulnerable populations, transgender people. The rule could also mean that those seeking an abortion could be denied care if performing the procedure violates the provider’s moral or religious beliefs. This rule opens the door for discrimination and protections for those who discriminate under religious freedom. In addition to the risk of discrimination, the signing of this rule produces a chilling effect, as seen in the Public Charge proposal, it is likely that transgender or non-binary people will be less willing to go to the doctor’s office out of fear and suffer health complications as a result. This comes during a pandemic where marginalized communities are severely impacted and to now add this layer of discrimination will inevitably result in preventable deaths. LGBTQ rights groups quickly and vocally condemned the rule change, calling the move “heartless”, “encouraging discrimination”, and “deadly consequences”. The Administration has made it clear with this rule, both in its contents and its signing date, that the LGBTQ+ community is a target and will lose rights.

However, the Supreme Court ruling provides workplace protections that help millions. Conservatives have strong opposition to  this ruling and to the apparent abandoning of conservative-values by the conservative Justices that sided with liberal Justices; this ruling not only established LGBTQ+ rights in the workplace, it likely set the foundation for addition alprotections down the line.

Justice Neil Gorsuch wrote the Court’s opinion based on a matter of logic when refuting the argument that the writers of the Civil Rights Act did not mention, nor intended on including sexual orientation of transgender status, when it protected against discrimination on the basis of sex. Gorsuch wrote “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first can not happen without the second.” While there is much to celebrate, many point to the widespread practice of “at-will employment”, where most employers do not need a reason for firing someone, thus rendering the decision meaningless. Title VII covers employees in workplaces with 15 or more employees and religiously-affiliated employers. While there are some exemptions, including ministers or other individuals whose job involves teaching or leading the faith, largely, this ruling applies to all job positions.

How do these two rulings interact with each other?

In a matter of four days, two branches of government gave conflicting orders prompting confusion about LGBTQ+ rights in the United States.  Both the Affordable Care Act and Title IX ban discrimination “on the basis of sex.” Although this language is different from the statutory language in Bostock, the Supreme Court case, which forbids discrimination “because of … sex,” the Court has indicated that the words “on the basis of” and “because of” have the same meaning. The Bostock ruling may have focused solely on employment discrimination, but legal scholars say the language will likely force an expansion of civil rights in countless areas of daily life for LGBTQ+ members and beyond.

The Administration has attempted to, and succeeded in some areas, to narrow the definition of sex in order to erase the rights of the LGBTQ+ population, but this ruling will likely upend this pursuit, protecting rights already federally protected in housing, healthcare, education, and credit. Importantly, the logic described in Justice Gorsuch’s opinion will be key, and will likely be applied to similar provisions, protections, and policies.  With this precedent, there is an expectation that any future cases ruling in favor of sex rights will expand the rights of the LGBTQ+ community.

While the Supreme Court ruling does not automatically invalidate the new healthcare rule, it makes it significantly more difficult to defend in court. Legal scholars, however, do not see the Bostock ruling impacting Trump’s Military Transgender Ban. The next challenge in sex discrimination is likely to be found in an anticipated policy to allow homeless shelters to consider biological sex rather than gender identity in placement decisions, even if that puts the LGBTQ+ individuals in harm’s way Another legal challenges will likely occur on the Administration’s argument that adoption services should be able to reject same-sex couples from adopting. The true strength of the Supreme Court ruling will be revealed in due time, likely highlighting more conflict with the Administration.

Engagement Resources:

  • American Civil Liberties Union A national organization working to defend civil liberties across the United States.
  • Human Rights Campaign : America’s largest civil rights organization, working to achieve lesbian, gay, bisexual, transgender and queer equality.
  • Lambda Legal A national organization committed to achieving full recognition of the civil rights of the LGBT community as well as those living with HIV/AIDS through litigation, societal education, and public policy work.
  • National Center for Transgender Equality : The nation’s leading social justice advocacy organization winning life-saving change for transgender people

Reach out to your senators and representatives to take action!

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