One Step Forward, One Step Back
Originally Published: 07/06/2020
Many transgender Minnesotans went from despair to elation over the course of three days in June, as conflicting federal announcements appeared to have significant implications for trans health access. JustUs Health Director of Advocacy and Research Phil Duran shares his review of the situation.
On June 12, the U.S. Department of Health and Human Services (HHS) announced a rule which would roll back the anti-discrimination protections afforded LGBTQ people through the Affordable Care Act (ACA, or “Obamacare”). While the ACA does not refer directly to sexual orientation or gender identity/expression, the Obama Administration applied a broad interpretation of “sex discrimination” to include, at least, transgender Americans and, in some cases, LGB Americans as well. The Trump Administration’s announcement intended to reverse this interpretation and leave LGBTQ Americans exposed to discrimination in regulated healthcare settings and in the terms of health plans.
But on June 15, the U.S. Supreme Court issued a decision in a group of three employment-discrimination cases which effectively said that the Obama Administration’s broad understanding of “sex discrimination” was correct, and applied that understanding to these cases involving LGBTQ people fired due to sexual orientation or gender identity/expression. Though this decision was specifically about the workplace, the broad understanding of what “sex discrimination” means will likely affect many federal policies, as it did during the Obama era, including those in the ACA. Legal action against the new HHS rule began immediately in the days right after the Supreme Court ruling, and many observers believe these restrictive rules will never go into effect.
In Minnesota, the back-and-forth of these competing announcements will change some things, but not many, related to transgender health. The Minnesota Human Rights Act (MHRA) has prohibited discrimination against transgender people since 1993, including in the area of health care. Depending on the circumstances, MHRA may cover this as public accommodations, public services, business contracting, or housing. Additionally, in 2015, the Minnesota Departments of Commerce and Health instructed health insurers they regulate to not exclude medically-necessary transition-related care from their health plans. Thus, many of the ACA’s protections existed under state law already, meaning most transgender Minnesotans should be unaffected by the new anti-LGBTQ HHS rules.
One area where JustUs Health expects the Supreme Court ruling to positively affect transgender Minnesotans is for those people working for larger companies whose employee health plans are self-insured; this type of plan is exempt from state regulation, and they are subject only to federal regulation. Many such plans contain the type of broad exclusions that Minnesota law does not permit. JustUs Health has successfully helped transgender Minnesotans pursue federal sex-discrimination complaints against such employers to get these exclusions removed, and the Court’s ruling confirms that this strategy will still be available to us. If you or someone you know is experiencing difficulties getting transition-related care covered by a health plan, please contact me at phil.duran@justushealth.org or 612-373-2426 to see how we might help you.