On a cold evening last January, I sat with Sandra in the living room of her apartment in Flint, Michigan, where she described to me how difficult it was to find health care as a transgender woman.
Sandra, whose name I’ve changed to protect her privacy, had been fired from her job when she started to transition, and had limited income. As she began to transition medically, she struggled with providers who expected her to teach them about transgender health. And she had to change providers when a trusted nurse practitioner moved to a practice that was hostile to LGBT people. She told me that although she urgently needed gender-affirming surgery, she had been unable to find a provider that would be covered by her insurance.
“I’ve been diagnosed with severe depression, suicidal tendencies, severe anxiety,” she told me. “And all they’re treating is my symptoms, and not my gender dysphoria, which is the root of all the issues and would be resolved with surgery.”
Stories like Sandra’s are not unique. But if the Trump administration proceeds with two regulatory changes, limited protections against discrimination in health care could soon become much weaker.
Over the past year, much of the debate about discrimination has focused on wedding services like cakes and calligraphers. Discrimination of any kind is hurtful and wrong. But in the health care field, discrimination puts people’s lives at risk. Nobody should be denied medical assistance because of their sexual orientation or gender identity, just like nobody should be refused service because of their faith.
As part of the Affordable Care Act, Congress declared that healthcare providers cannot discriminate based on race, color, national origin, sex, age, or disability. The Obama administration enacted a rule clarifying that sex discrimination includes discrimination based on gender identity and sex stereotypes, putting providers and patients on notice that those behaviors are prohibited by federal law.
A handful of states and religious providers sued the Department of Health and Human Services, claiming that the protections violated their religious liberty. In response, a federal judge in Texas issued an injunction, temporarily stopping the rule while the lawsuit continued.
Instead of defending these important nondiscrimination protections, though, the Trump administration has decided to weaken them.
First, Health and Human Services announced that it intends to roll back or rewrite the rule affirming the prohibition on discrimination against transgender people. This would send a terrible signal to providers and patients, suggesting that the agency does not take discrimination seriously or intend to act to stop it.
Second, the agency has proposed a new rule that would dramatically expand protections for providers who refuse to treat patients on religious or moral grounds. Traditionally, conscience protections in health care have been crafted to minimize harm to patients. They have generally been confined to specific procedures, like abortion, and give extra safeguards to religious objectors who might otherwise be required to perform those procedures.
The proposed rule would throw any semblance of balancing out the window. It would expand beyond the language enacted by Congress, with the agency pledging to protect a much broader range of healthcare refusals. And it could allow anyone with an “articulable connection” to a procedure – from administrative staff to technicians to maintenance workers – to decline to provide care.
These rules could be devastating for LGBT people, who already experience health disparities. Over the past year, I’ve interviewed dozens of LGBT people across the US about the daunting barriers they face in accessing health care.
Some were turned away by providers who decline to work with LGBT people at all. This is not only for services related to being LGBT – for example, hormone replacement therapy – but for services like mental health care, fertility treatments, even primary care visits.
Even when LGBT people were able to see providers, they often faced mistreatment. One man in Tennessee described how a provider had prayed over him when he went for an HIV test. He hadn’t gone back to that provider for testing again. Other people described being repeatedly addressed by the wrong name or pronoun, encouraged to stop being gay, or put on display for other staff to inspect.
When LGBT people fear discrimination, studies show they are less likely to seek out the care they need.
In recent years, both Mississippi and Tennessee have enacted laws that allow providers to turn people away because of the providers’ religious beliefs. As Persephone Webb, an activist in Knoxville, Tennessee, told me, “We see through this – we know this is an attack on LGBT people.” These sweeping refusals discourage LGBT people from seeking the care they need because they fear mistreatment.
The Trump administration’s rules have not been finalized – and they shouldn’t be. In the weeks ahead, the Department of Health and Human Services should withdraw these dangerous rules and affirm that patients come first.
If they don’t, Congress should step in to stop them. Congress is considering two long-overdue bills that would solidify the principle that discrimination has no place in health care. The Equality Act would prohibit discrimination based on sex, sexual orientation, and gender identity in a range of areas, including in establishments that provide health care. And the Do No Harm Act would help ensure that religious objections do not deprive patients of their access to medical care.
There’s still time to speak out. But if Health and Human Services proceeds with its reckless rulemaking, lawmakers should take responsibility to ensure that nobody is deprived of access to health care because of who they are.