In April, the Department of Justice filed an expected but ominous notice in pending litigation over Obama-era regulations implementing the nondiscrimination provisions of the Affordable Care Act, alerting a federal court that new regulations would soon be coming from the Department of Health and Human Services.
The pending case, Franciscan Alliance v. Azar, was one of many cases brought by Texas and other conservative states in the Northern District of Texas seeking to a put a nationwide stop to Obama administration efforts to explicitly protect LGBTQ people from discrimination, including in health care. This particular action sought to strike down regulations implementing Section 1557 of the ACA, which made explicit that, among other things, restricting health care for transgender people was impermissible. Franciscan Alliance, one of the parties, alleged in the complaint that “part of the image of God is an organic part of every man and woman, and that women and men reflect God’s image in unique, and uniquely dignified, ways. Franciscan does not believe that government has either the power or the authority to redefine sex.”
Given these objections, the complaint continued, “Franciscan sincerely believes that providing insurance coverage for gender transition, sterilization, and abortion would constitute impermissible material cooperation with evil.” At the time, Franciscan Alliance, the state of Texas, and the other plaintiffs were at odds with a federal government, which sought to ensure that transgender people could receive health care without facing discrimination. Now these parties are aligned with a presidential administration invested in stripping away protections for transgender individuals in every possible way. So now we are waiting for new proposed regulations that will undoubtedly attempt to restrict access to health care for trans people and try to widen the door for discrimination against us in health care settings.
Transgender people face rampant discrimination in all aspects of our lives. From family rejection to employment, educational, and housing discrimination to denial of health care, our community— confronted with the denial of basic life necessities—experiences devastatingly high rates of suicide, homelessness, and incarceration. The combination of discrimination, rejection, compounded trauma and stress, and criminalization leads to terrible health outcomes and shortened lives. In a comprehensive 2015 survey of more than 25,000 transgender and nonbinary respondents, “23% of respondents did not see a doctor when they needed to because of fear of being mistreated as a transgender person, and 33% did not see a doctor when needed because they could not afford it.” A majority of respondents reported being denied health care related to their gender transition. And this rejection and discrimination were significantly worse for people of color, people with disabilities, and immigrants.
The ACA 1557 regulations provided a critical intervention in the crisis of transgender health care—and now our government is going to try to take that away. This attack is part of a coordinated effort at all levels of government to challenge trans existence, criminalize our bodies, and push us into the shadows. Gutting the 1557 regulations is part and parcel with the efforts at the departments of Education and Housing and Urban Development to roll back guidance explicitly protecting trans people from discrimination. Nor can this effort be separated from the arguments being raised in state legislatures seeking to license discrimination against trans people in health care, LGBTQ children in foster care, and LGBTQ people in all aspects of public life.
And for trans people, this conversation truly is one of life or death.
Using rhetoric to suggest that our health needs are experimental and cosmetic, seeking to weaponize our pain and trauma as evidence that we do not deserve respect and care, and suggesting that our very existence threatens the privacy of others, this administration—and the many state and local governments attacking trans people—are asking that we die. That we be killed—by our shame; by people who hate us; by the slow death in systems that seek to erase us. Propagating a narrative that our bodies are dangerous, shameful, and something to be hidden and that our health care needs are not “real” emboldens people to turn us away from health care, to attack us in the streets, to reject us in all aspects of our lives.
I am one of the lucky ones, and I still know this rejection all too well. I have had health insurance for my entire life, I’m a white lawyer with a stable job and supportive family and friends living in the Northeast, and I still could not get coverage for the gender affirming surgery that ultimately saved my life. I was shamed by health care providers when I tried to get the supporting documentation for my surgical care and paid out of pocket with loans to cover the cost. Every time I need gynecological care, I face barriers because my insurance provider cannot comprehend that someone listed as male could need a Pap smear or have a uterus. Even trips to a dentist, a physical therapist, or a neurologist are stressful because I spend so much time worrying about how much information to disclose. Do I say that I am transgender? Do I list my full health care history because that would out me? Will I receive worse care if they know? Will I be confronted with invasive questions? This often leads me to avoid care altogether even when I am in sick, in pain, or concerned about my health. And I am certainly not alone. For people of color, disabled trans people, trans immigrants, and trans people living in poverty, these experiences are heightened. The danger is more acute; the rejection, more severe.
But our community’s insistence on surviving and claiming the truth of our lives has shifted policy, public discourse, and survival opportunities. There is now a medical consensus that health care related to gender transition is medically necessary and should be covered by insurance. And try as it might, this administration cannot undo that scientific reality or the federal laws, including the ACA, that prohibit sex discrimination. No matter what the new HHS regulations say, no matter how aggressively it attacks trans bodies and lives, the Trump administration cannot undo the ACA prohibition on discrimination without Congress. Courts have made clear time and time again that prohibitions on sex discrimination include trans people, that our health care is medically necessary, and that our bodies don’t infringe on the privacy rights of others.
Trump and his allies may keep trying to sell a false tale that we do not exist or that we do not deserve freedom, but they will not win. New regulations cannot change the law. The ACA still prohibits sex discrimination. They will face us all down in court. They will be confronted by our beautiful lives on display in public. By the joy of our traumatized but alive bodies. The impulse to criminalize, attack, erase, shame, and pathologize the bodies of those who represent a disruption to the moralistic white supremacist norms of our world is powerful, but the beauty of our disruption is more powerful.