In a blow to transgender civil rights, the Trump administration finalized a regulation that removed health care discrimination protections for transgender patients. Adding insult to injury, the rule was finalized in the middle of a global pandemic – when health care access is paramount – and on the fourth anniversary of the Pulse nightclub shooting in Orlando, where 49 people were murdered in the gay club during Pride Month 2016.
With this change, the Department of Health and Human Services will now only define sex discrimination protections “according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.” Whereas, under Obama’s Affordable Care Act, patients were also protected from discrimination on the basis of gender identity — defined as “male, female, neither, or a combination of male and female” — or sexual orientation. This move is part of a broader effort by the Trump administration to scale back protections for transgender people experiencing sex discrimination by narrowing the definition of sex. The administration also has attempted to ban transgender people from serving in the military.
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The American Medical Association strongly condemned the action by the administration in a statement from their president, Dr. Susan Bailey: “The federal government should never make it more difficult for individuals to access health care — during a pandemic or any other time.”
The rule will allow health care providers to refuse to treat gender dysphoria, defined as distress or discomfort caused by not identifying with one’s gender assigned at birth, or to refuse treatment simply because of a patient’s gender identity.
As Mari Brighe, a freelance writer and transgender woman, told NPR, the rule endangers transgender people seeking health care by allowing more room for providers to discriminate. “I can relate a decade of stories about getting terrible health care because I’m trans,” Brighe said. “We walk into any given health care situation not knowing whether doctors are going to treat us well, whether we’re going to get high-quality care, whether any given, random health care person is going to be terrible to us.”
Rodrigo Heng-Lehtinen, deputy executive director of the National Center for Transgender Equality, emphasized to the New York Times just how dangerous it is to allow discrimination in the middle of a pandemic. “It’s really, really horrendous to not only gut nondiscrimination protections, but to gut nondiscrimination protections in the middle of a pandemic. This rule opens a door for a medical provider to turn someone away for a COVID-19 test just because they happen to be transgender,” he said.
The same day the HHS rule was finalized, the Washington Post reported that the Department of Housing and Urban Development proposed another rule to allow discrimination of transgender individuals experiencing homelessness. The proposed HUD rule would get rid of Obama-era guidance and allow single-sex homeless shelters to discriminate based on gender identity by housing people according to their sex assigned at birth. Previously, the Obama administration authored the Equal Access rule, which required single-sex homeless shelters to accept people according to their gender identity. It’s a particularly cruel move by the administration considering, according to the National Center for Transgender Equality, one in five transgender individuals have experienced homelessness in their lives and an estimated 20-40 percent of homeless youth are transgender of LGBQ-identified.
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