Unless you live under a rock, you’re likely aware that the Affordable Care Act is in jeopardy. On Thursday, the House of Representatives voted to repeal the healthcare plan, which would leave 24 million uninsured if replaced by the GOP’s American Health Care Act (AHCA). The bill now goes to the Senate, which has elected to write their own version of the AHCA. Its passage remains an open question, at least for the time being.
But amid the intense furor over the possible ACA repeal—a vote that happened on the same day that Trump signed an executive order to expand religious liberty—one important story got buried. And it centers on a population that stands to lose no matter how the health care fight shakes out: transgender Americans.
On Tuesday, the Department of Justice announced that it would not defend Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of race, sex, and national origin from any medical providers that receive federal funding. Last year, the Obama administration ruled that those federal nondiscrimination protections should extend to gender identity, which would allow trans people to have aspects of their transition-related care covered by their ACA plan.
That decision, though, was blocked by a Texas judge in January, and Tuesday’s move by the DOJ to stay the injunction permits the Department of Health and Human Services (HHS) to “reconsider the regulation at issue in this case.” This means that Section 1557 will be sent back to the federal government to be redrafted. Given the number of virulently anti-LGBTQ people who will be involved in making the final decision, trans inclusions are likely to be removed.
Earlier this month, Roger Severino—who believes that doctors with moral objections shouldn’t be forced to treat transgender patients—was appointed to lead the Office of Civil Rights at HHS. His boss, Tom Price, is even more anti-LGBTQ. Price, a former House representative from Georgia, referred to the Obama administration’s 2016 guidelines calling for protections for trans students “absurd” and a “clear invasion of privacy.” He also claimed the Matthew Shepard and James Byrd Jr. Hate Crimes Act was a “thought crime” and “immoral.”
Advocates warned that any attempt to gut trans protections under the ACA would have disastrous consequences for the estimated 1.4 million transgender people living in the U.S. Kris Hayashi, executive director of the Transgender Law Center, told the Daily Dot that an attack on transgender health is an attack on the community’s “ability to survive and thrive in this country,” while Demoya Gordon, the staff and transgender rights project attorney at Lambda Legal, added that it’s “literally a life-and-death issue for transgender people.”
This is not hyperbole. Transgender people have some of the most wide-ranging and expensive medical needs of any group of the population—access to hormones, among other things, can cost around $1,500 a year—but they are the group most likely to go without coverage. There’s a reason for that: Many trans folks in need of care drop out of a system where they are likely to be refused service because of their trans status.
A 2010 study from the National LGBTQ Task Force found that nearly a fifth of transgender respondents had been turned away from a doctor because of their gender identity, and 28 percent of those surveyed claimed that they had put off seeking medical treatment out of fear of being discriminated against. Even when trans people can get an appointment with a primary care physician, half of trans people claimed that they’d had to educate their doctor on trans health.
One survey participant, who claimed it’s difficult to find physicians who treat you like a “human being,” said their experiences of harassment forced them back into the closet in health settings. “I never reveal my gender history,” they said.
Prior to the Affordable Care Act, trans people were “denied coverage or dropped by an insurance company because the insurance company [considered] transgender people to have a pre-existing condition,” according to the National Center for Transgender Equality. Under the ACA, insurance providers can no longer turn patients away just because they’re trans. But if the current version of the AHCA bill is passed, then states will be allowed to consider being transgender a pre-existing condition again. This would lead to trans folks paying much higher premiums or going without insurance altogether.
By making it easier to discriminate against trans people, the government will do grave harm to a community that’s already disproportionately likely to be physically and even sexually assaulted when seeking care. If a 1997 study from the Clinical Endocrinology journal found that transgender people who seek appropriate, affirming care are unlikely to take their own life—with suicide rates as low as 0.8 percent—then the opposite is also true. Being refused access to hormones and surgery, or even lacking the ability to go to the doctor when you have a cold, can greatly exacerbate mental distress.
Considering that statistics from the Williams Institute show that 41 percent of trans folks will already attempt to end their lives, this is not a population that can afford to be subjected to more psychological harm.
Advocacy groups, however, stress that even if Section 1557 is repealed by HHS, hope is not lost. Laura Durso, the vice president for the LGBT Research and Communications Project at the Center for American Progress, told the Daily Dot that the Obama policy is “still the law of the land, and it still protects LGBTQ people from discrimination.” Gordon added that the legal system has repeatedly upheld nondiscrimination on the basis of sexual orientation and gender identity, and that groups like Lambda would continue to sue medical providers in cases of anti-trans bias.
“Courts have repeatedly said that statutes that bar discrimination based on sex, like Section 1557 does, protect transgender people from discrimination,” Gordon said. “What this latest attack by the Trump administration will do, though, is create confusion among the general public as to what the law requires and invite increased discrimination against transgender people.”
The Senate could debate the future of the GOP health plan well into the summer, according to Politico, and many believe that the bill will fail. But LGBTQ people must stay vigilant—because the fight is far from over.
