The disorder of the American health-care system is maddening for everyone. For transgender people, it can be a waking nightmare.
Suspicion, stigma and outright ignorance among providers and insurers alienate a group of people who already face increased risks of violence, psychological distress and chronic health conditions. According to the 2015 United States Transgender Survey, a study of nearly 28,000 transgender adults, one third of those who saw a health-care provider during that year were turned away, harassed, or faced another form of mistreatment because they were transgender.
{mosads}Far too often, we are mocked and harassed by providers and staff and denied coverage for routine treatments simply because of who we are. It’s no wonder one in four transgender people have declined to seek treatment out of fear of being discriminated against by their health providers.
Despite this caustic environment, the Trump administration is about to make things far worse.
The Department of Health and Human Services is working to rollback a crucial guidance that helps to make it clear discrimination against transgender people is prohibited by federal law. By doing so, the administration is set to take an unstable situation and worsen it with chaos and confusion for patients and providers alike.
Discrimination against transgender people in health care is clearly prohibited by a Section 1557 of the Affordable Care Act. This section, otherwise known as the Health Care Rights Law, bans discrimination on the basis of race, nation of origin, age and sex. According to two decades of court cases, discrimination against transgender people is covered by sex discrimination clauses like the one in the ACA.
After years of review and public input, the Obama administration issued a regulation in 2016 clarifying the Health Care Rights Law does, in fact, protect transgender people. The decision was a landmark for the nearly two million transgender adults in this country and a welcome recognition by the federal government of the struggles faced by so many transgender patients.
The Health Care Rights Law and the 2016 rule prompted a titanic shift among insurers. Before the ACA, exclusions of coverage for transition-related treatment were standard practice among insurers. Afterwards, a study conducted by LGBT health advocacy group Out2Enroll found over 95 percent of silver plans sold on the Marketplace in 2017 did not have these exclusions.
These discriminatory policies were removed from Medicare plans in 2014 and 18 states and the District of Columbia have adopted inclusive policies in their own Medicaid programs. A federal judge ruled the state of New York must remove exclusions of some treatments after transgender residents filed a lawsuit against the state and Wisconsin is facing a similar lawsuit filed just this week.
However, many of the instances of discrimination faced by transgender people have little to do with trans-specific treatments. An analysis of the complaints filed after the 2016 regulation by transgender people found most were about being denied access to general health treatments, like medications and checkups.
Such discrimination is so common, it even has a name among transgender people: “Broken Arm Syndrome.” Too often, a doctor declines to treat a transgender person’s standard injury because they, through ignorance or bias, associate it with the person’s gender transition. Indeed, over half of transgender people have had to educate their doctor on issues related to their health care.
Much of the confusion among providers and insurers alike stems from a lack of public awareness about the rights of transgender people and what constitutes discrimination. It’s a problem the Obama administration sought to rectify with its 2016 regulation and a reversal of that rule by the Trump administration will only add to the disarray.
Without guidance or enforcement from OCR, insurers that have removed exclusions for transition-related treatment could re-adopt them, prompting even more uncertainty in the insurance markets. Hospitals and clinics could use the change in regulation as cover to deny transgender people life-saving care.
In lieu of federal enforcement, lawsuits are one method many transgender people might use to defend their right to equal and fair treatment. That option is far from ideal – civil suits are expensive and out of reach for many people and it is a slow and burdensome process that can only be taken after the damage is already done.
A harrowing example of this came in 2016 after a mother sued a San Diego children’s hospital for discriminating against her 14-year-old son, Kylar. After he was admitted for depression and suicidality, hospital staff continually harassed the transgender boy, declining to use male pronouns and telling him he’d make such a pretty girl.
As shown in recent studies, transgender youth are far more likely to face mental health issues because of the stigma they face and their risks of suicide can be reduced by taking steps as simple and respectful as using their correct pronouns and name. By performing the opposite of these best practices and discharging him after just 24 hours, the boy’s mother claimed the hospital contributed to his suicide five weeks later.
The federal judge in that case found that transgender people are, in fact, protected by the sex discrimination ban in the Health Care Rights Law. And while that is one of many important victories in the legal battle over transgender equality, it likely came as little respite to Kylar’s mother.
Patients need proactive policies to prevent such tragedies, not reactive lawsuits. But under a federal government that refuses to enforce its own laws, the victims of discrimination will have few other options in defending themselves. This reversal will sow dissonance in a system that already produces difficult, even fatal outcomes.
Transgender people continue to pass important milestones in achieving equality — in our health-care system and elsewhere in society. But those landmark triumphs over hatred are fragile and easily undone. By refusing to enforce the law, the Trump administration will only further cement the decimation of transgender rights in this country as their top priority.
Luc Rizzaro is the policy counsel at the National Center for Transgender Equality