The Department of Health and Human Services regulation is part of a pattern: This White House has made it its mission to restrict transgender rights in areas from housing to education to, now, health. The Affordable Care Act, like many other laws, has a provision preventing discrimination on the basis of sex. The last administration interpreted that to include gender identity, and now this administration is reinterpreting it to refer to biological sex at birth alone — despite a majority of justices just having come to precisely the opposite conclusion in an employment discrimination provision in the 1964 Civil Rights Act.
Yanking away access to health care for a vulnerable population would be cruel at any moment. Doing it amid a pandemic is especially dangerous. This change is more than an exemption for medical professionals who refuse to prescribe hormone therapies or perform transitional surgery; it is more than even an allowance to deny a transgender man coverage for a hysterectomy. The rule suggests a wholesale license to discriminate, against a group already at higher risk for poor health, at a time when quick and equitable treatment is paramount and pressing. Additional provisions threaten access to care for people who have had abortions and people with limited English proficiency.
The LGBTQ community celebrated a victory for fairness last week, but the dissonance between that win and this beat-back shows the battle isn’t over. The justices have held that discrimination on the basis of LGBTQ status is necessarily discrimination on the basis of sex. That analysis ought to extend beyond Title VII and employment to other state and federal non-discrimination laws, and knock down contradictory practices and legal interpretations like HHS’s as if they were dominoes. The problem is, the White House seems determined to prop up whichever of these dominoes it can.
Any normal administration would respect the division of powers and recognize defeat in the eyes of the law. This administration appears determined to do the opposite — leaving the victims of discrimination no recourse except to go to court and challenge a government that not only refuses to fight for them but is determined to fight against them.