Trans rights are at stake with rules from the Trump administration and Supreme Court seemingly at odds

Wednesday, July 1, 2020 - 6:03pm

.

Design by Hibah Chughtai

On June 12, the Trump administration announced a rollback of Obama-era anti-discrimination policies for trans and nonbinary people in the healthcare system. According to a statement from the Department of Health and Human Services, the federal government will no longer recognize gender identity as protected categories under the civil rights section of the Affordable Care Act, and will curb the interpretation of “sex” to pertain only to “the plain meaning of the word” as “male or female and as determined by biology.”

Three days later, the Supreme Court followed with its own ruling on sex discrimination in employment, arguing sex discrimination does encompass discrimination on the basis of sexual orientation and gender identity. These seemingly contrasting federal rulings have raised questions in terms of what that ultimately means for trans and nonbinary people’s rights. 

LSA junior Hazel Gordon voiced her concerns to The Daily in the wake of the Trump administration’s ruling, stating that trans discrimination in this country is not necessarily new, but explicit government backing for it is.

“It is worth noting that it does happen already,” Gordon said. “This just provides, I guess, legal backing for it … I think it opens up a lot of already vulnerable people to further discrimination.”

Gordon, who identifies as a trans woman, said the Supreme Court’s decision is a sign of progress, on the other hand, but shouldn’t be met without skepticism, especially in terms of its limited implications for non-explicit forms of discrimination.

“I think the Supreme Court ruling is important symbolically, in that I doubt it would have ruled in our favor five years ago,” Gordon said. “But again, it’s one of those things where it only protects you if it’s explicit discrimination — and you have the resources to challenge it in court.”

Samuel Bagenstos, University of Michigan Law School professor and civil rights litigator, stressed similar concerns. According to Bagenstos, who has argued several cases in front of the Supreme Court concerning workplace discrimination, non-discrimination clauses are often the most difficult to enforce at the hiring stage. On top of those concerns, Bagenstos said the ruling will not prevent employers from asking new hires to sign agreements to resolve issues of discrimination through private arbitration.

However, Bagenstos also identified a few key areas in which the Supreme Court’s decision likely will make a difference. For instance, he said the ruling will make it more difficult for employers to get away with explicit forms of discrimination, which Bagenstos emphasized are not rare in cases regarding LGBTQ+ workers’ rights. He also said the ruling will likely result in expanded anti-discrimination internal policies at larger companies.

Regarding the Trump administration’s rollbacks, Bagenstos said he is doubtful as to how long they will hold up following the Supreme Court’s ruling.

“I think, under the Supreme Court’s decision on employment discrimination, the Trump administration’s new rules on healthcare discrimination are going to fall,” Bagenstos said. “It’s a different statute, but it’s exactly the same in its language, and all of the rationale that the court used in the case involving employment discrimination would totally apply to healthcare discrimination.”

Several LGBTQ+ advocacy groups have already filed lawsuits against the Trump administration, challenging the rollback. Bagenstos said he anticipates these cases will be settled before they even make it to the Supreme Court, after the “colossally poor timing” of the Trump administration’s rollback.

“It’s just a matter of time before one of those courts orders the Trump administration to go back to the drawing board because, again, those new rules just can’t stand in light of the Supreme Court’s decision,” Bagenstos said.

At the University, both Michigan Medicine and University Health Service operate under internal policies prohibiting discrimination against LGBTQ+ patients and have staff specifically trained to provide gender-affirming care.

UHS shared a statement asserting its anti-discrimination policies will remain intact, despite the Trump administration’s rollbacks, in an email to The Daily.

“UHS will continue to provide safe access to affirming, inclusive, quality health care for our University of Michigan campus, including all LGBTQ+ students, faculty, and staff,” the statement reads.

Michigan Medicine released a similar statement on its Transgender Services webpage, vowing to continue, as well as expand, services moving forward.

“We at Michigan Medicine continue to stand by the transgender community, and remain committed to serving patients of all gender identities and expressions,” the statement reads. “We are actively working to expand access to gender-affirming care, to improve employee training in gender-affirming care, and to improve our own policies and processes to better care for patients, families and visitors.”

Rackham student Monica Lewis has been able to witness some of these improvements to the University’s transgender services take shape. As the trans health chair for the Graduate Employee Organization’s trans health caucus, Lewis has worked to expand healthcare coverage for trans patients on campus.

“In the last, like, two or three years in particular, the state of trans health coverage at U-M has improved pretty substantially, in my opinion,” Lewis said.

Regarding the Trump administration’s rollback of protections, Lewis’ concerns lie less with the University’s response and more with how the rollback could affect newer trans patients. Speaking from her experiences in the health care system throughout her transition as a trans woman, Lewis described a “chilling effect” that could ensue following the Trump administration’s ruling, despite Michigan Medicine’s strong anti-discrimination policies.

“Someone just starting their transition is not necessarily in the know on a lot of the intricate ways that trans healthcare works,” Lewis said. “And I say this as someone who used to be an early-transition trans person, but early-transition trans people assume the worst about everything, and they are understandably very apprehensive … They’re going to see the rollback in the news, they’re going to read the catastrophic intent behind it … (and) they may become less likely to seek care in a timely manner that they need.”

Lewis also noted, however, that these issues of access can be exacerbated by the letter system that many transgender health care providers, including Michigan Medicine, have abided by in the past. Historically, patients have been required to provide letters of support in order to begin transition-related procedures, often from therapists. Lewis said that this not only creates socioeconomic barriers by indirectly making the ability to afford therapy a prerequisite, but also can send a harmful message to trans people early on in their transition.

“The presumption is that you’re delusional,” Lewis said. “So you need to have a therapist make the argument on your behalf that you are the gender that you say you are. That is a prerequisite to get care of under this model.”

Alternatives to the letter system exist, such as the informed consent model. As an example, a patient seeking hormone therapy would be required to certify that they discussed the risks and benefits of the procedure under this model, rather than relying on mental health or other providers to advocate for them. It is this kind of gender-affirming practice — in tandem with a conscious effort to inform the public of these practices — that Lewis says could help alleviate any effects of the Trump administration’s rollback.

“Positioning yourself as a patient advocate who is here to help them through their transition, rather than as a judge who is here to arbitrate over whether they’re an authentic woman or an authentic man or an authentic nonbinary person, will help make patients feel like they belong more within our health system,” Lewis said. “And (it) will help mitigate the effects of being … told that they should leave by the Trump administration.”

Daily Staff Reporter Julianna Morano can be reached at jucomora@umich.edu.