Obama's HHS rule clarified that protection based on sex included gender identities, which it defined as "male, female, neither, or a combination of male and female." The rule from the Trump administration, which was proposed in 2019 and finalized on Friday, instead reverses the more nuanced aspects of "sex" to only protect someone who faces discrimination for being female or male. This reversal cracked the door wide open for apparently legal discrimination against the 1.4 million transgender adults in America people who, under this interpretation of sex discrimination, could be denied health-care on the basis of who they love or what gender they identify as.
Trump's attempts in this regard appear to be short-lived, however. Today, a landmark U.S. Supreme Court decision offers a ray of hope for transgender folks who spent the weekend fearing that they wouldn't be able to pay for the often expensive care they need. Thomas Ude, Jr, Legal and Public Policy Director at the Mazzoni Center for LGBTQ Health and Well-Being, says that it's a huge deal for all LGBTQ+ folks—especially the transgender community, since it could affect the HHS rule.
What was today’s Supreme Court ruling about?
Today's 6-3 opinion Supreme Court ruling, Bostock v. Clayton County, Georgia, extended employment discrimination protections to all LGBTQ workers—and it's one that will likely have a place in the history books. The ruling revolved around employers in Georgia who had allegedly fired employees based on their sexual orientation and gender identity.
"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids," wrote Neil Gorsuch, associate justice of the SCOTUS (and ironically, a Trump appointee), who cast one of the six yeas. (Title VII is a section of the 1964 Civil Rights act which states that an employer cannot refuse to hire, fire, or otherwise discriminate in a work setting against anyone based on "such individual's race, color, religion, sex, or national origin.")
Ude says that this decision came from a specific view of what the Civil Rights Law meant by sex. "Today's ruling was a very direct interpretation [of Title VII] on behalf of the Court that when an employer fires somebody or discriminates in some other way that violates federal law; it's discrimination based on sex," says Ude. "You can't take any of those identities—lesbian, gay, bisexual, transgender, or queer—into account without considering the person's sex." Thus by federal law, sex discrimination also means discrimination against someone's sexual orientation or identity, not just what they were biologically assigned at birth.
The fact that the ruling took place at a federal level is huge, considering that only 23 states and Washington, D.C. include both sexual orientation and gender identity in their nondiscrimination statutes. (Meaning an estimated 3.9 million LGBTQ+ workers live in states without these explicit protections, according to the UCLA Williams Institute.) The court ruling now means that LGBTQ+ workers across the country are protected at a federal level, even if their own state tries to turn their backs against them.
This SCOTUS decision is a huge deal, particularly for the U.S. transgender community. Members of the trans community are three times more likely to be unemployed than cisgender people. Twenty-nine percent live in poverty and one-third of them are homeless. These statistics are staggering, and they're due in large part to the fact that many transgender people are discriminated against in the hiring process, left behind in promotions, and isolated from or bullied by their coworkers. Now they, like other members of the LGBTQ+ community, are officially covered by employment discrimination protections.
That's about employment, though. How does this ruling impact the move by the HHS against trans people?
Trump's HHS move was a regulation ("a rule or directive made and maintained by an authority"), and Ude says that normally in court, statutes (aka laws passed by a legislative body like Congress, which includes the 1964 Civil Rights Act) beat out regulations almost every single time.
"What the Trump administration did was issue a regulation. It doesn't change the fact that court interpretation has already interpreted the Affordable Care Act to protect against discrimination based on gender. It doesn't change other court rulings, and it doesn't change the statute itself. The statute itself still prohibits discrimination based on sex," says Ude. Basically, since the Supreme Court officially expanded the definition of sex and sex-based discrimination to include discrimination based on someone's sexual orientation or identity, it might override the HHS's ruling—meaning that health-care providers can't deny services to a person just because they're transgender.
Although the HHS regulation still remains in effect, Ude is doubtful that members of the court will ever rule in favor of a regulation over a statute like the Civil Rights Act. In other words, transgender people are now (in theory) protected by the judicial branch—if not by the executive one.
What does this all mean going forward?
While it's hard to say exactly what the tension between the HHS ruling and Supreme Court ruling will bring to bear in the coming months, Ude says employment discrimination cases still underway will likely come down on the side of the Supreme Court's view, since the body has now set legal precedence for the rest of the country.
"For cases that are pending, this answers the question of whether people have a claim of discrimination," says Ude. "It does leave it open that there are undecided questions that will need to be addressed, but I think what this does mean is that employers are now faced with exposure to liability for discriminating against people because of their sexual orientation or their gender identity." There's the possibility, too, that previous cases lost by the LGBTQ+ community may be appealed (and hopefully won) in the future. As for Trump's HHS ruling, Ude expresses that it shouldn't mean much in light of the verdict from SCOTUS (although it's very possible that lawyers for the Trump administration will try to argue otherwise in court).
In a time seemingly filled with sad, disheartening news—including the killings of two Black trans women last week—today at least marks a positive step forward for LGBTQ+ rights in the United States.
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