Identity

Is it Legal for Doctors to Discriminate Against Trans Patients Now?

A federal judge just blocked enforcement of a section of the Affordable Care Act that protects trans people from discrimination in healthcare. We asked an ACLU lawyer to explains what this means for the LGBTQ community.
January 4, 2017, 8:43pm
Photo by Sean Locke via Stocksy

On Saturday, US District Judge Reed O'Connor halted enforcement of a section of the Affordable Care Act (ACA), Section 1557, which prevents doctors from discriminating against their patients on the basis of gender identity. The ruling was given in a case brought by Texas attorney general Ken Paxton and eight other states, which argued that this statute of the ACA violates the religious freedom of providers who apparently, perplexingly, feel that providing lifesaving medical care to trans people is morally wrong.

According to a study conducted by the National Center for Transgender Equality, 19 percent of trans people have been refused care because of their gender, 28 percent have been harassed in medical settings, and this (unsurprisingly) causes many trans people to avoid going to the doctor when they're not well. We have seen progressive laws passed under the Obama administration that boldly name such discriminatory treatment illegal. This sort of reform is necessary in order to try and change an unequal society; O'Connor's ruling is an affront to equal rights.

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Physicians have always been able to provide hormonal medical treatment to trans patients if they so wish, and they have been doing just that for decades. But until recently gender transition was relatively culturally obscure, and many trans people struggled to find a physician willing or able to do the treatment. Trans health clinics—like Callen Lorde Community Health Center (CLCHC) in New York, or Fenway Health in Boston—have long filled a gap in health services for LGBT people in the US. Their informed physicians provide comprehensive medical care, including trans related treatment, as part of an individual's overall healthcare—and they typically treat patients regardless of cost or insurance coverage.

Unfortunately, large trans clinics only exist in some metropolitan areas across the country, which makes it much more difficult for trans people living in other parts of the US to receive appropriate treatment. That's what makes Section 1557 so important; under the law, any trans person in any state is able to seek medical treatment for gender dysphoria from federally funded providers with the knowledge that they are legally protected from discrimination.

Rulings such as these elevate the continued and urgent need to educate healthcare providers.

O'Connor's ruling weighs heavily on people who are working in transgender medicine. "Rulings such as these elevate the continued and urgent need to educate healthcare providers and the public about the healthcare and human rights of our transgender community," says Kimberleigh Joy Smith, a senior director of community health planning and policy at CLCHC. Smith points to similar protections that have been passed on the local level. For instance, trans healthcare is now covered under Medicaid in New York, which was achieved through the courts by trans advocates.

"This federal ruling lets us know there is more to be done to ensure that there are enough competent, capable, sensitive physicians and service providers that can promote the health of our communities," Smith adds.

"Every court that has considered the issue recently has agreed that discriminating against someone because they are trans or gender nonconforming is a type of discrimination on the basis of sex," says Joshua Block, a senior staff attorney with the LGBT and HIV Project of the ACLU. O'Connor's ruling is abnormal in this way, defying an "established body of precedent," Block explains.

The ACLU is challenging the judge's ruling and has a "fully briefed motion to intervene in the case," which is currently being reviewed by a district court. (In legal terms, intervention refers to a party's ability to insert itself into a case, even if it wasn't named as a party in the original lawsuit.) "We are going to continue to pursue that strategy and do everything we can to make sure that this decision doesn't stand," Block says.

"The regulation [Section 1557] protects trans people from being turned away at hospitals just based on hostility or dislike," he adds, pointing out that the ruling in this case has centered around the specific transition-related treatments that some transgender people receive, such as hormonal replacement therapy, but that blocking it consequently also undermines trans people's ability to receive any healthcare at all. "Trans people have problems accessing medical care that has nothing to do with transition-related health care," Block says.

Read more: For Trans People on Hormones, Doctors Can Be the Worst Part of the Treatment

But just because O'Connor's ruling prevents the federal government from enforcing Section 1557 doesn't mean Section 1557 has been wholly overturned. The law still stands, and it still protects trans Americans. Under O'Connor's ruling, the federal government is simply barred from enforcing the law, which means that states can't remove federal funding from a medical provider, which would have been the penalty for violating Section 1557.

Block says that the law would normally be enforced either by the Department of Health, or by individuals who sue privately—and individuals haven't lost the right to go to court over discrimination. "Nothing in this ruling affects the ability of private plaintiffs to sue to enforce their rights," Block explains. "That's the silver lining." Because the ACA and Section 1557 are still intact—though the Trump administration could soon try to undo it—trans people today can continue to benefit from these protections.

"As far as trans people are concerned, their rights today are exactly the same as they were before the decision was issued," Block says. "Trans people should continue to vigorously enforce their rights just as they were doing before."