A Band-Aid Fix: Section 1557 of the Affordable Care Act and the Need for Federal Laws to Protect Transgender People in Healthcare.

• Author: Clemens, Sarah

"'Your trans status is on display and on parade ...,' Corado said, reflecting on insensitive medical professionals who have asked her such questions as, 'What are you?"' (1)

1. INTRODUCTION

   Transgender and gender-nonconforming people are among the most marginalized and disfavored sexual minorities in contemporary American society. (2) The stigmatization of transgender people is particularly prevalent in healthcare, where transgender people report feeling unsafe, misunderstood, and sometimes verbally harassed by medical providers. (3) Some transgender people avoid going to the doctor at all, even when medically necessary, because they fear mistreatment or disrespect. (4) Transgender people are also less likely to have insurance due to discrimination by health insurers because of their transgender status and other barriers. (5) Societal discrimination causes serious psychological distress among transgender people, which in turn results in an attempted suicide rate that is nearly nine times higher than that of the general U.S. population. (6) Following a suicide attempt, a transgender person is less likely to receive medical attention and treatment than the general population. (7) These often fatal consequences are preventable, and the solution begins with equal access to health-care services and federal protections for gender identity discrimination. (8)

   The Patient Protection and Affordable Care Act (ACA)--a major healthcare reform act passed during President Obama's Administration--sought to increase access to comprehensive health insurance while lowering health-care costs. (9) The ACA's civil rights provision, section 1557, prohibits health-care providers and insurance health plans from discriminating against a patient on the basis of sex, race, or national origin. (10) To further clarify the scope of section 1557's sex discrimination protections, the Office for Civil Rights (OCR), acting under President Obama's Department of Health and Human Services (HHS), promulgated a regulation defining section 1557's sex discrimination provision to include discrimination based on sex stereotyping and gender identity. (11) By including sex stereotyping and gender identity in the definition of sex discrimination, the Obama-era regulation afforded further protections for the transgender and gender-nonconforming communities. (12) In 2016, a group of religiously affiliated health-care providers and eight states seeking to limit the scope of section 1557 to the binary sexes (male and female) challenged the Obama-era regulation in court. (13) The district court judge--dubbed the "go-to judge" for conservative litigants--found for the providers and enjoined part of the regulation on the grounds that section 1557 protected only the binary sexes and reasoned HHS had exceeded its authority by broadening the definition of sex discrimination to include gender identity discrimination. (14) HHS, under President Trump's Administration, asked for a stay of the proceedings so that the agency could revise the rule. (15) In June of 2020, in an attempt to exclude transgender people from the ACA's discrimination protections, President Trump's HHS issued a new rule repealing the Obama-era regulation, specifically its inclusive definition of sex discrimination, and explaining that sex discrimination is meant to protect only the biological sexes. (16) Nevertheless, at least two federal courts have enjoined the Trump rule in light of the Supreme Court's decision in Bostock v. Clayton County, (17) which held that transgender discrimination constitutes discrimination "on the basis of sex" under Title VII of the Civil Rights Act of 1964 (Title VII). (18)

   This Note will evaluate the protections section 1557 of the ACA originally afforded to transgender patients and the need for federal protections of transgender people in order to remedy stigma-driven health disparities. (19) While this Note focuses on the transgender experience, the issues may apply broadly to other gender-nonconforming persons, including nonbinary and genderqueer individuals. (20) Part II will examine the harmful effects of discrimination on transgender health, and how that discrimination alienates transgender people from the healthcare system. (21) Part II will also explore the interpretation of sex discrimination in Title IX, Title VII, and Equal Protection cases, in order to understand the meaning of sex discrimination under the ACA. (22) Parts III and IV will argue that, in drafting section 1557, Congress intended sex discrimination to include transgender discrimination, as demonstrated by section 1557's incorporation of Title IX, and by association, the definition of sex discrimination in Title VII cases. (23) Parts III and IV will also argue that, given the state of transgender health and the transgender community's vulnerability to COVID- (19), this population is uniquely deserving of federal protection. (24) Further, this Note recognizes that the uncertain future of the ACA--and President Trump's repeal of the Obama-era regulation during a global pandemic--creates confusion regarding what rights are available to transgender patients, which could result in severe and even fatal consequences for transgender people. (25)

2. HISTORY

   1. How Societal and Systemic Discrimination Negatively Affects Transgender Health and Access to Healthcare

      1. The Marginalization of Transgender People in Society

         Despite a relatively low national unemployment rate for the U.S. population, transgender people are three times more likely to be unemployed than cisgender people. (26) Transgender people of color experience higher unemployment rates as compared to their white transgender counterparts. (27) According to the 2015 U.S. Transgender Survey, 13% of transgender respondents reported losing a job at some point in their life and believed it was because of their gender expression, with Native American, multiracial, and Black respondents among the most likely to lose a job because of their transgender identity. (28) Even more telling, more than half of respondents reported having to hide their transgender identity at work for fear of discrimination or mistreatment. (29) These fears are not unfounded, as 15% of employed survey respondents reported being harassed or discriminated against at work in 2015 alone. (30)

         Transgender people who have lost a job because of their gender identity are more likely to participate in the underground economy, which includes sex work, drug sales, and other criminalized activities. (31) In general, one in five transgender survey respondents reported participating in the underground economy at some point in their lives, with transgender women of color among the most likely. (32)

         The 2015 survey also found a positive correlation between homelessness and the likelihood of participating in sex work. (33) In general, transgender people are three times as likely to experience homelessness compared to the general U.S. population and are also twice as likely to live in poverty. (34) Nearly one-third of transgender people reported being homeless at one point in their lives, and 12% reported facing housing discrimination for being transgender sometime during 2015. (35) These data demonstrate that the transgender community faces severe economic and housing instability at much higher rates than the general population. (36)

      2. Barriers to Healthcare: Discrimination by Employers and Health Insurers and Problematic Patient-Physician Relationships

         Transgender people face both societal and systemic barriers to receiving adequate health care. (37) At the physician-patient level, many providers mistreat transgender patients due to the providers' discriminatory bias, as well as physicians' lack of training and understanding of transgender and nonbinary health needs. (38) Discriminatory bias by health-care providers not only decreases the chances of a transgender person receiving adequate care, but also discourages transgender people from seeking medical treatment at all. (39)

         At the systemic level, the transgender community faces structural and economic barriers to accessing quality and affordable health care. (40) High unemployment rates among transgender people increase the likelihood that a transgender person is uninsured, as most health insurance programs are employment-based. (41) Transgender people are often unable to afford healthcare expenses or pay for private insurance on the individual marketplace because of high unemployment rates in the community. (42)

         Transgender people are more likely to be uninsured, more likely to face problems obtaining insurance coverage, and once insured, more likely to be denied insurance coverage for routine healthcare needs. (43) Although not all transgender patients seek transition-related surgery or hormone therapy, insurers routinely deny coverage for these services as well, which further alienates transgender people from the healthcare system. (44)

      3. Effect of Interpersonal and Systemic Discrimination on Transgender Health

         1. Minority Stress Effect

            It is well established that societal stigma and discrimination can cause adverse health effects in marginalized populations. (45) Minority stress theory recognizes that people who belong to marginalized groups, such as transgender and gender-nonconforming people, may have worse overall health as a result of increased stress due to social stigma and prejudice. (46) Moreover, transgender and gender-nonconforming people who frequently face discrimination are more likely to engage in health-harming behaviors such as attempting suicide, abusing drugs and alcohol, and smoking. (47) This phenomenon is especially true for transgender people who belong to more than one disadvantaged group, such as transgender people of color, who face multiple forms of discrimination and thus are more likely to engage in health-harming behaviors and have worse overall health. (48) Unsurprisingly, the multiple forms...