As reported by the New York Times in October 2018, the US Department of Health and Human Services (HHS) has introduced an initiative to legally define gender as a “biological, immutable condition determined by a person’s genitalia at birth.” This measure threatens healthcare access for transgender and intersex individuals in America, communities already burdened with discrimination from physicians, providers, and insurers. In a Perspective article published in the New England Journal of Medicine, Jocelyn Samuels, JD, and Mara Keisling, BSS, unpacked the many potential consequences of this regulation, including poorer health outcomes for transgender patients and unclear legal guidelines for providers.
A 2015 survey of 28,000 transgender adults revealed that one-third who had sought healthcare in the previous year had a negative experience, such as harassment or “being…turned away.” One-third of participants also reported declining to see a healthcare professional for fear of mistreatment. Scientific research has identified mistrust of healthcare providers as a major contributing factor to poorer health outcomes among minority groups. At increased risk for HIV, substance use disorders, and suicidal ideation, transgender individuals should receive proportionate care from health professionals, but because of fear of discrimination, many do not.
Passed in 2010, the Affordable Care Act (ACA) prohibits sex discrimination by providers, hospitals, and other healthcare entities. Many courts have interpreted this law to include discrimination faced by transgender individuals. Most federal courts have similarly interpreted other nondiscrimination laws to include gender identity, including Title VII of the 1964 Civil Rights Act and Title IX of the Education Amendments Act of 1972. In 2016, a regulation passed by the HHS asserted that gender identity discrimination was prohibited by the ACA. This rule has been openly welcomed by the American Medical Association and other physician groups, underscoring support for inclusivity in the medical community.
Under the Trump administration, however, this 2016 regulation could be rescinded. Current HHS activity threatens the health of transgender people, individuals for whom respect and dignity remain a legal right. Without antidiscrimination regulations in place, increased discrimination from providers could directly harm individuals in care and indirectly harm individuals who choose not to seek medical help for fear of mistreatment. In addition, the authors wrote, the new initiative could confuse physicians on the nature of their legal responsibility to transgender patients.
“Mixed signals” from the ACA and the new HHS initiative could lead to needless lawsuits and litigation. In 2015, a young transgender teenager committed suicide after harassment from inpatient psychiatric staff for his gender identity. The hospital was sued for discrimination, and the court ruled that the patient was protected by the ACA. Had antidiscrimination regulations been observed at the hospital, providers would have been “[aware] of their legal responsibilities,” thus avoiding lawsuits. Beyond this, the life and dignity of the young patient would have been preserved, according to the current interpretation of the ACA.
Discrimination according to gender identity has well-documented deleterious effects on the health of the transgender community. The October 2018 efforts by the Trump administration to revoke antidiscrimination regulations will affect not only vulnerable patients but also healthcare providers for whom responsibilities would be unclear under new legislation.
Samuels J, Keisling M. The anti-trans memo — abandoning doctors and patients. N Engl J Med. 2019;380(2):111-113.