Identity

LGBTQ Orgs Are Suing the Trump Administration To Protect Trans Health Care

“We should not fear that if we walk in the door that we’re going to be laughed at or we’re not going to be able to see a doctor simply because of who we are.”
July 8, 2020, 2:35pm
A transgender woman in a hospital gown being treated by a doctor, a transgender man
Photo by Zackary Drucker via the Gender Spectrum Collection. 

Bamby Salcedo hears every day from transgender people who are discriminated against while seeking health care, but one recent story sticks out to her. Salcedo is the CEO and president of the TransLatin@ Coalition, a national trans advocacy group, and a client reached out last month after she was denied emergency medical treatment. The woman told Salcedo that one of her breast implants had burst, causing extreme pain as the silicone spread throughout her body. But when she went to the hospital, the medical staff told her that they “didn’t know how to treat her because she was trans,” Salcedo, who lives in Los Angeles, recalled her client saying.

Although the woman was able to be admitted to another medical center, she continued to experience further mistreatment. She told Salcedo that nurses at the hospital would crowd around the client’s hospital bed, gawking and laughing at her. Although she’s a monolingual Spanish speaker and couldn’t understand what the staffers were saying, Salcedo explained that every trans person learns to be keenly aware when they’re being treated “like an animal at the zoo.”

“We should not fear that if we walk in the door that we’re going to be laughed at or we’re not going to be able to see a doctor simply because of who we are,” Salcedo told VICE.

Trans advocates fear the community will be even more vulnerable to this level of mistreatment if the Trump administration is successful in rolling back anti-discrimination protections in health care. In June, the Department of Health and Human Services announced it was moving forward with a long-expected plan to revoke trans-inclusive language in Section 1557 of the Affordable Care Act that prevents sex-based discrimination in federally funded health care centers. In 2016, the Obama administration extended its legal interpretation of the definition of “sex” to include gender identity.

Salcedo said revoking the Obama-era rule—which has been in legal limbo after being blocked by a federal court just months after it was announced—could be a literal matter of life and death for a population that already lacks access to care. A 2016 study published by the TransLatin@ Coalition found that 55 percent of respondents are so afraid of experiencing situations like the one Salcedo’s client reported that they put off going to the doctor or hospital when they need treatment.

“It’s an excuse to deny health care,” Salcedo said of the Trump administration’s actions. “This new rule gives permission to healthcare providers to bluntly discriminate against people.”

Salcedo’s organization is one of nearly a dozen LGBTQ nonprofits that have already announced they will be suing to preserve the Obama-era protections. At least four lawsuits are in the works representing a dozen national civil rights advocacy groups, community centers, and health care nonprofits. TransLatin@ Coalition teamed up with Lambda Legal, Los Angeles LGBT Center, and Whitman-Walker on a legal action, while the American Civil Liberties Union, GLBTQ Legal Advocates and Defenders, and Human Rights Campaign (HRC) are mounting their own challenges.

The HRC suit was filed on behalf of plaintiffs Cecilia Gentili, a transgender Latina who came to the U.S. as an undocumented immigrant, and Tanya Asapansa-Johnson Walker, a former military veteran and two-time lung cancer survivor.

When Walker, who lives in New York City, was first admitted to the hospital for lung cancer in 2013, medical staff withheld testing until she answered invasive questions about her genitalia. She remained in remission after having a portion of her lung removed, and the abuse was even worse during the second round of treatments. Walker was misgendered, outed as trans to other patients and staff, and denied HIV medication, according to a detailed 70-page complaint filed in federal court. The complaint also states that hospital staff “exposed Ms. Walker’s genitalia to her roommate by failing to close the curtains around her bed” and refused routine check-ins, leaving her to “lie in her own feces for hours.”

Jason Starr, HRC’s director of litigation, said their stories highlight “how the issue of healthcare discrimination has really been a driving force” in the lives of transgender people. “I can't overstate how compelling these narratives are and how consistent,” Starr told VICE. “We have two plaintiffs here, but we talked to so many folks before we were thinking about litigation. They told very consistent stories about what it means to be trans and exist in a world that’s hostile to you.”

These kinds of horrific experiences long predate the Trump administration. According to a 2015 survey from the National Center for Transgender Equality, 33 percent of trans Americans had at least one negative experience with a health provider, such as verbal harassment, physical assault, or worse in the past year. When Tyra Hunter, a 25-year-old Black trans woman who resided in Washington, D.C., was in an ultimately fatal car accident in 1995, the EMTs who responded to the scene terminated treatment after discovering she was transgender. Her family subsequently won a $2 million wrongful death suit.

Starr said LGBTQ advocates are worried that factors like COVID-19 will only serve to further compound decades of discriminatory practices. “So much of what we need the court to understand is that the harms here are not just theoretical,” Starr said. “As soon as that rule was announced and subsequently published, it is causing current and continuing harm.”

In order to prevent further damage, LGBTQ nonprofits are lobbying for an injunction before the repeal is officially set to take effect in August. The Trump administration has largely declined to comment on the multiple appeals, but Roger Severino, director of HHS Office for Civil Rights, said in a statement to CBS News that doctors “are not allowed to withdraw life-saving treatments or deny emergency care for non-medical reasons” to any population.

“To suggest that doctors would deny life-saving care to people based on their identity is scaremongering and insulting to the medical profession,” Severino claimed.

LGBTQ advocates hope that the lawsuits provide a platform for a form of discrimination that Salcedo said is often “invisible,” but Lambda Legal Senior Attorney Omar Gonzalez-Pagan said it’s also a perfect opportunity for the courts to make history all over again. Last month, the Supreme Court held up a landmark 6-3 decision that workers cannot be fired solely on the basis of their LGBTQ identity under Title VII of the Civil Rights Act of 1964, which bans employment discrimination on the basis of characteristics like race, sex, and national origin.

Gonzalez-Pagan said that ruling, which was authored by conservative Justice Neil Gorsuch, “eviscerates the rationale” that trans people are not entitled to the same health care protections that everyone else enjoys. “The Affordable Care Act prohibits discrimination on the basis of sex, and the Supreme Court said discrimination based on transgender status or sexual orientation are forms of sex discrimination,” he said. “It certainly strengthens our case.”