On June 15, the Supreme Court ruled that the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of sexual orientation or gender identity, which the LGBTQ community considered a victory . Before this decision, it was legal in over half of states to fire people for being transgender, gay or bisexual.
However, the decision came just days after the Department of Health and Human Services' Office for Civil Rights under the Trump administration finalized a rule removing nondiscrimination protections for LGBTQ people as they relate to health care and health insurance.
The change overturns a protection in the Affordable Care Act that prohibited discrimination based on sex, which the Obama administration defined in 2016 as determined by gender identity, including the options “male, female, neither, or a combination of male and female.” This contrasts with the new rule, first proposed in June 2019, that defines sex as biological and either male or female.
For several transgender Bloomington residents, the Supreme Court ruling came as a surprise, while the HHS rule change confirmed their experiences with the health care system.
“My reaction, personally, was utter shock,” said Jasper Wirtshafter, a volunteer hotline operator at Trans Lifeline. “This employment decision is, I believe, the biggest victory for queer rights in my lifetime. It’s Pride month, and I wish I could be out celebrating with my community.”
Wirtshafter, who has worked for trans rights organizations in the past, said trans advocacy and activism groups nationally had been preparing for months to respond to the ruling, but that their efforts assumed a negative ruling. Their concern was whether the decision would be broad or narrow in terms of the discrimination allowed.
“Out of the blue, the opposite happened,” he said. “I didn’t prepare emotionally for a win.”
O.M.A., an IU junior studying computer science and math who preferred not to be named as he has not made it known publicly that he is trans, said that he was excited to see Justice Neil Gorsuch, of all people, write an opinion protecting trans people.
In the majority opinion, Gorsuch wrote, “An employer who fires an individual merely for being gay or transgender defies the law.”
“It’s nice to see something that has to do with civil rights that isn’t a partisan issue,” he said.
Others are less optimistic about the decision.
Jeanne Smith, the owner of local bike shop Bikesmiths, said she understood why some members of her community were celebrating, but that she was worried about the combined implications of the HHS rule change and the Supreme Court case. She expressed concern that medical staff would feel re-empowered to deny service to trans patients, setting up a situation for a future Supreme Court case possibly pitting the Civil Rights Act against the constitutional protection of freedom of religion.
Religious objections in medical care more commonly arise around issues such as abortion or assisted suicide, but another Trump-era HHS rule put in place in May 2019 protects the rights of health care workers to be free of coercion or discrimination based on their religious or moral beliefs. This opened up a legal possibility for doctors or other medical workers to deny care based on a moral objection to the existence of trans people.
“I think it’s not over yet,” Smith said. “We’re all celebrating now, but that’s what it comes down to.”
“With everything that’s going on, the world is very volatile, and we are concerned about where this might go,” said Elbe Lieb, who works in a warehouse for a shipping company. “It’s not just Donald Trump, it’s the GOP, the people behind the GOP, the evangelical movement. They have an agenda and they’re not just going to give up.”
None of the four people interviewed by the Indiana Daily Student had personally experienced employment discrimination, which they credited to a range of factors including union protections, having multiple college degrees, white privilege, being self-employed and working mainly in nonprofit and university settings. However, their experiences in the health care systems showed a different story.
“The ruling basically made legal what was already widely practiced,” said Wirtshafter, referring to the HHS rule change.
He said he had experienced discrimination including downright refusals to provide care and blatantly transphobic comments from medical providers, but said that he considered his experiences to be much less severe than what other trans people have faced.
Smith said that just before the Affordable Care Act was signed into law in 2010, the insurance provider Humana refused to sell her an insurance policy. Even after the ACA was passed, she said she continued to face problems accessing equal health care, including her policy refusing to pay for her anesthesiology bill because someone had marked “male genitalia” on one piece of paperwork.
Smith added that this situation was only resolved nine months later, after she had spent 12 hours on the phone with five different government agencies and civil rights offices, and finally, when she hired a lawyer. She also said that prior to the Affordable Care Act, during a time when she had to pay for her trans-related health care out of pocket, she had a bad experience at the Bloomington Planned Parenthood, where throughout her visit, everyone she interacted with called her male.
O.M.A. said that while he had never been openly discriminated against in a health care setting, he has had doctors that were obviously uncomfortable with him and that acted like he was a “specimen” rather than a patient. Even more than overt discrimination, trans people are discriminated against by the health care system at large, O.M.A. said. Trans people often have to travel long distances, pay out of pocket for medical costs deemed “cosmetic” by insurance companies and wait for extended periods of time to see the relatively few doctors that specialize in caring from trans patients.
“I didn’t think I would ever be able to receive care,” said Lieb. “(The Affordable Care Act) allowed a lot of trans people to come out because they could receive care.”
She said that she transitioned in 2015 after getting out of the army, in part because she could receive support for it through her work insurance and the Veteran’s Administration as a result of the Affordable Care Act. Seeing a lot of trans people able to come out after 2010 because of access to health care and what they perceived as an increasingly welcome climate was a high point for her and the trans community, so the recent rule change was “devastating” for many people.
Lieb added that she has not faced much explicit discrimination, but she said that is in part because she chose not to transition for a long time because of fear and in part because she now is extremely cautious and aware of the places that she goes.
“In some ways, the discrimination was always there,” she said. “It kept me in the closet.”
Now, Lieb said that she is concerned that doctors will refuse to treat her and other trans people on religious grounds. This sentiment was echoed by Smith, who added that she called ahead of a surgery last year, just to make sure that everyone involved knew in advance that she was trans and would not walk out or refuse to treat her when she arrived at the hospital.
Both of these changes happened against the backdrop of Black Lives Matter protests, and several interviewees drew connections to the intersections of the oppression of Black people and trans people, noting that Black trans women, in addition to being discriminated against generally, are murdered at disproportionately high rates.
“The biggest victory for queer rights in my lifetimes was a Supreme Court decision saying that you can’t be fired for being LGBT. For that to be a victory is deeply sad,” said Wirtshafter. “It’s a victory that’s a reminder of how much we have to fight for still.”
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