The Dose - Transgender Americans Just Lost Health Protections. Now What?

Episode Date: July 10, 2020

On June 12, the Trump administration eliminated federal protections against discrimination in health care for transgender people. This means that transgender Americans can be denied access to health coverage and care – simply because they are trans. With the U.S. still grappling with COVID-19, the decision could make it more difficult for trans people to seek testing or treatment for the disease. And it deepens the health risks for a population already facing barriers to care. The Commonwealth Fund’s Corinne Lewis, Yaphet Getachew, and Mekdes Tsega talk about the implications of the new rule, particularly for trans people of color, on this episode of The Dose podcast.

The Dose is a production of the Commonwealth Fund, a foundation dedicated to affordable, high-quality health care for everyone. On June 12th, the Trump administration eliminated federal protections against discrimination in health care for trans people. So this is effectively bringing us back to a time where trans people could be denied care or access to services because of the fact that they're trans. Hi everyone, welcome to The Dose. That was Corinne Lewis on a new revision to the Affordable Care Act, which makes it more difficult for transgender Americans to get the health care

they need. On today's show, we're talking about how getting rid of these protections for trans people is particularly worrying in the face of the COVID-19 pandemic. Corinne is on our delivery system reform team at the Commonwealth Fund, and she's joining me with our colleagues, Mekhtis Sehga and Yafit Gitachu. So, Corinne, tell me a little bit more about this new rule. What does it do? Sure. So the Affordable Care Act had Section 1557, which prohibits discrimination in health care based on race, color, national origin, disability, and sex. In 2016, the Obama administration interpreted that Section 1557 to also mean that people that were trans were protected from discrimination in healthcare because of their gender identity. So this meant that healthcare

providers and insurance companies that accepted federal funding, which is essentially all of them, were not able to deny access to coverage, services, and care to trans people in a way that they would for trans people, period. So now what the Trump administration did is reversed that rule. So essentially, they eliminated all of those protections against discrimination in healthcare at the federal level. So I personally think that the timing of this rule is also what is particularly devastating about it. So the protections for trans people were eliminated by the administration on June 12th. So not only is that Pride Month being June, but it also marked the fourth anniversary of the Pulse nightclub shooting, which of course was the mass shooting at a gay bar in Florida. I think it's also interesting that a few days after this rule was finalized by the Trump administration, the Supreme Court ruled that LGBT people are protected from employment discrimination. So, again, it's just really interesting timing. I think for me

personally, as a gay person, it just feels like we're constantly taking these steps forward, especially in regards to sexual orientation. But then for the trans people in my community and for gender identity, it feels like we're taking these steps backwards. I guess now let's focus on the health issue. What does this new Trump administration rule mean for the health care of transgender people? Yafet? So what the 2016 rule did, as Corinne mentioned, was protect trans people when trying to access various different types of health care. It meant that you couldn't be denied access to health services or facilities based on your gender identity. You couldn't be denied coverage for transition-related services

and more. And this rule was made because this stuff had been happening. Trans people had been denied care, denied coverage for so many trans and non-trans-related procedures. So we had this brief period in which transgender people were protected by the health care law, and now we have this new rule that doesn't protect them anymore. So let's focus on the health care issue. What does the new rule mean for the health care of transgender people? So basically, all of these covered entities, which are hospitals, insurers, and other healthcare entities that received federal financial assistance, no longer are required to actually treat trans people in a way that's consistent with their gender identity. That means they can

deny access to health services or facilities, they can exclude them from coverage, and also deny coverage for transition-related services. And this is going to be widespread. The Office of Civil Rights estimates that of the 137,000 entities that this rule covered, over half of them are expected to actually revise the rule and stop prohibiting discrimination under this rule. So this will be nationwide and will have large effects on the trans population's access to health care. And just to add to that, it's not just that trans people can be denied care in line with their gender identity. It's also the opposite. So they could be denied care

because of other health care needs. So for example, in the case of a trans man with ovarian cancer, the plan or provider could actually deny care for cancer because of the fact that that person is trans. Right. I mean, in the example you've just given us, it means that somebody with cancer could be denied treatment for their cancer by a healthcare provider. Yes, and trans people in surveys do say that they are. Some 30% of trans people say that they have negative experience with providers. That includes refusal of care. And it leads to them not wanting to get it, let alone even getting to the point where they're denied it.

There was one focus group of trans men in New York City that showed that 70% of them refused to go to the emergency room because of historical discrimination and fear of further discrimination when they got there. These have wide-ranging effects. So if we zoom out a little bit, Yafit, and we think about how many people are impacted, how many Americans identify as trans? So it's hard to get an exact number, but we can estimate from some federal surveys that it's about 1.7 million Americans identify as transgender or gender non-conforming in the United States. And what's it like? I mean, I imagine that they face discrimination at every level, but tell us a little more about it. Trans people in the U.S. and gender minorities in the U.S. face discrimination at every single level. There

are barriers to their access to education, housing, employment, healthcare, some legal and illegal, but yet it continues to happen in the United States. And the way that that discrimination and systematic oppression works has denied them access to the same opportunities that many other Americans get and actually makes them more likely to be low-income, homeless, and have poor physical and mental health. And nearly all of these issues are just compounded and even worse for trans people of color. Yeah, what's it like for a trans person of color trying to seek care, even if it's like a routine checkup? So trans people face one burden in the United States, people of color face a burden as well. And those issues, again, are compounded when combined. And trans people report being verbally or physically

harassed when they're trying to access care. They report being refused care. They report just also having healthcare professionals that don't understand what being transgender means and having to teach them about their care. And this actually leads to trans people, like I said, one, just not going in to get care. Or two, not disclosing that they're trans when they're trying to get care, which is critical actually to a lot of healthcare treatments. So it creates a system in which their health is not being prioritized and the healthcare system isn't functioning in a way that is best for them. Yeah, just to underscore what Yafit was saying, I think especially for trans people, there's an incredible mistrust in a lot of

institutions, but especially healthcare. And I think that's an issue that's amplified for trans people of color because of historic racism in the healthcare system as well. And I often think about if you're a trans person that has been either outright denied care or when you did seek care were discriminated against or harassed in the way that we know happens from the data and research, why would you go to the health care system? They're not meeting your needs and it's actually in a lot of ways a place of danger. And what this rule has done is sent the signal that the federal government will not protect you if that does happen. Well, just so I understand, there was this brief period when the federal government actually did protect you and say that healthcare providers cannot deny you care. But now we've gone back on that at a time when we're facing this huge health crisis. We're in the middle of the COVID-19 pandemic.

How does this decision by the Trump administration make things even more dangerous for trans people who need healthcare? This ruling is particularly concerning for this population because they were already experiencing discrimination and harassment when seeking medical treatment prior to the pandemic,

as we've talked about. According to a report from the National Center for Transgender Equality that we cite in the blog, 28% of transgender people report avoiding care altogether because of stigmatization and harassment. What this final rule does is it heightens the perception that providers will not care for them and will discriminate against them. Now we're in the middle of this pandemic and there's this highly contagious disease spreading across country in the world. And transgender people are maybe reluctant to get testing or

treatment for COVID, which means that their health is at risk and the health of other Americans is also at risk. You know, we don't know how many people, we don't know how many trans people have contracted or died of COVID as there continues to be this issue around missing data. However, we do know that transgender people are more likely to have underlying conditions like HIV or cancer and are more likely to be homeless and low income, making them particularly vulnerable to COVID. These factors, in combination with hospital capacity challenges and now weakened legal protections, are more likely to result in trans people either avoiding care or being turned away for seeking care. Throughout this pandemic, we've seen policymakers, delivery system leaders, public health officials, and so many people who are trying to combat the pandemic doing everything they can to try and increase access. That means helping to pay for testing. That means increasing the number of sites around the country, trying to ensure that people aren't worried about not accessing care. And this rule, particularly at this time, just goes completely against that. And it's surprising that it would

come out when it looks like everything in the healthcare system is pointing, doing things in the opposite direction. Right. I mean, why would you make it more difficult for somebody to get tested when the number one thing we need to figure out how many people have COVID-19 is to make sure that people with symptoms can get tested? It's been a big issue from the beginning. People have talked about how we need to provide coverage and protections for people, particularly who are low income, so that they aren't worried about going in to get COVID-19 treatment when it's needed. And this won't support that. This will actually do harm to it, be it in a legal way or in at least a perceived way because of fear of discrimination

when a trans person might go into a facility. I feel like at a time when we should be encouraging people to get tested, because the only way we're going to beat this pandemic is if people are getting tested. It doesn't make sense that trans people are being discouraged from seeking health care. But more generally, do we know how many trans Americans have COVID-19 relative to the rest of the population? No, we actually don't have that data. There's actually an issue with collecting data on transgender individuals in general.

Mike does is totally right. There's a lack of data about LGBT people in general in the United States. About 10 years ago, in 2011, the Institute of Medicine highlighted this as a big issue and said that we need more research, more data, more surveys to include trans people and trans populations because of differing health needs, as we're seeing. Since then, trans people have been included in more national surveys and more federal government research. The biggest one is probably the BRFSS survey, which is the Behavioral Risk Factor Surveillance System, which is the largest national survey about health-related needs, and it's done by phone. And there's now this actually an optional module where certain states can actually choose to ask a question about gender identity or sexual orientation. Since 2014, when this was added as an optional module, 37 states, I believe, have used it at least once. However, this data is not consistent, and still about a quarter of states don't use it

at all, and don't use it every single year. And it's just one survey, and we need the data to be more comprehensive. We can't try and address any kind of health needs for any minority population without understanding what the needs are and what the disparities are. This has become a big issue right now in the COVID pandemic, because at the beginning, we didn't have data on what was happening in Black and brown communities. We couldn't quantify the disparities that were being reported to us anecdotally. And so there was a huge push in order to get demographic data for COVID-19 testing, deaths, and so much more. And this is the same exact reason and logic why we need it for all different types of minorities, including gender minorities.

I mean, that makes sense because when we did start looking at the COVID-19 data based on race, we found that if you're a person of color, you're more likely to get COVID-19 and you're more likely to be hospitalized and you're more likely to die. So it's really important to know what's happening in, as you say, all minority communities. And it's galvanized communities to have that data. People see it. When people, for example, see that going outside of COVID-19, that Black women have higher rates of dying during childbirth. There's an increased pressure on both policymakers and providers to understand what the problem is, why it exists, and how they can change it. And we need that same energy when it comes to issues regarding

transgender health. We need to understand what the problems are more, which we hear anecdotally and from small community surveys and from various organizations that do trans advocacy, we hear those issues on the ground and we just need large surveys and large research institutions to think about them, prioritize those issues so that action can be taken to try and address them. And just to add to that, I think it is really important that we have data itself, but it's also important that we bring trans people to the table in designing research and being involved in the research process. So that includes developing research questions, actually asking trans people what outcomes should be measured, and including them in lot of sense. Since we've been talking about disparities and we've been talking about trans people in the context of the COVID-19 pandemic, there is another big national issue that we're facing right now, which is nationwide protests against racism and police brutality. You alluded to this a little bit, Yafit, but trans people of color really face high levels of discrimination. Let's talk about that. Yeah, so as we talked about

earlier, trans people of color are far too often the victims of violence, harassment, and discrimination. Like Yafit said, they're not just dealing with transphobia that exists in the world, they're also experiencing racism. The murder rate of trans women of color in particular is incredibly high. And a lot of times this violence is actually at the hands of the police. Just look at the Tony McDade story. When it comes to police violence, especially, I think it's interesting to remember what happened at Stonewall, right? This cornerstone moment in LGBT history that really started the gay liberation movement was actually an event led by trans people, particularly trans women of color, when they fought back against the police because they

were fed up with the constant raids and policing of their communities. So I really think the mistreatment of trans people, particularly trans people of color by institutions, including the police and in healthcare, really contributes again to this general mistrust of institutions. So you're sort of saying that the two play off each other. If you mistrust the government or the state in the form of the police, you also mistrust healthcare institutions? Right, exactly. Oftentimes when you have mistrust of one institution like the police or the government, it feeds into this mistrust in healthcare and vice versa.

So let's come back to the problem that we have on our hands right now, which is that healthcare providers can now discriminate against trans people. But surely there's going to be some sort of legal challenge to this or something, right? Yeah. So we've already seen that kind of happen. Just a few days after the final rule was published, a coalition of LGBTQ clinics and organizations actually filed a suit to block the Trump administration rule that aims to rescind health care protections for transgender people. If not already, it's very likely that there'll be others to follow. So there's some hope specifically that something could happen to prevent this rule from having thousands of trans people denied health care. But how can we make these protections more permanent? The reality is that health care protections for transgender people can change by

administration through the rulemaking process, which means that transgender people are constantly vulnerable to discrimination on the basis of gender identity. This patchwork of policies and gaps in legal protections that we see for transgender individuals really stems from the fact that the federal government hasn't explicitly and uniformly defined what sex means in federal law and what it means when it comes to discrimination against LGBTQ Americans. Because the federal government, the Supreme Court has yet to do this, rulings on sex discrimination have kind of been decided on a case-by-case basis, which leads to inconsistencies and gaps in protection against discrimination.

So this is what you were talking about earlier, where we have one Supreme Court decision that protects transgender people in the workplace, but then healthcare providers are now allowed to discriminate protects transgender people in the workplace, but then healthcare providers are now allowed to discriminate against transgender people. Exactly. So what would give transgender people more uniform protection against discrimination? So the way to strengthen protections for transgender people from facing this sort of discrimination is really through some sort of congressional is really through some sort of congressional action, specifically through legislation that could be a sweeping measure

that would make legal protections more comprehensive and uniform and ban discrimination in all areas, ranging from housing to health care and in other spaces as well. And this measure has actually been proposed in Congress before. Last year, a group of lawmakers introduced the Equality Act. And the Equality Act would basically amend the Civil Rights Act to explicitly prohibit discrimination based off of sexual orientation and gender identity. And provide consistent non-discrimination protections for LGBTQ people across all areas, including employment, housing, credit, federally funded programs and more. And while the bill passed in the House, it hasn't been taken up in the Senate. And so it's just been stalled there. Got it. Well, as we're wrapping up and before I let you all go,

do you have any other thoughts, any other ways in which the healthcare system could be strengthened to protect transgender Americans? I think a lot of this is the responsibility of providers and health systems too. While this rule is a major setback for trans people at the federal level, I think that there are a lot of opportunities for providers and health systems that are interested in improving care for trans people to learn more. There is a ton of research out there that shows that providers are actually often not prepared to talk about issues around gender identity with people. So educating yourself, and if you're a health system leader, thinking more about training programs to educate providers, I think is really important. I would really recommend looking at trans organizations that have been doing this work for a long time. One of them is the National Center for Transgender

Equality. They're an organization that actually a lot of the research and survey work that we do have about trans people comes from. They've been documenting the health disparities for a long time. I've been advocating for trans issues and trans equality. So I would very much recommend checking them out as well. All right. Well, thank you guys so much

for joining me today. Thank you. Thank you. Thank you. The Dose is hosted by me, Shanur Sirvai. Our sound engineer is Joshua Tallman. We produced this show for the Commonwealth Fund with editorial support from Barry Scholl

and design support from Jen Wilson. Special thanks to our team at the Commonwealth Fund. Our theme music is Arizona Moon by Blue Dot Sessions. Additional music by Pottington Bear. Our website is the dose dot show. There you'll find show notes and other resources. That's it for The Dose. Thanks for listening.