“Everyone—including LGBTQ people—should be able to access health care, free from discrimination or interference, period.”
Those were Health and Human Services Secretary Xavier Becerra’s words on Monday, as he announced that the Biden administration would be reversing the Trump-era policy of letting health-care providers discriminate against transgender patients. This marks a vast change when it comes to government protections for transgender people, with the Biden administration standing solidly on the side of barring discrimination, while Trump’s acolytes and Trump-minded lawmakers continue to antagonize trans people and strip them of their civil rights.
This is a civil rights fight over a decade in the making.
In 2010, President Obama, with then-Vice President Joe Biden by his side, signed into law the Affordable Care Act. The law contained a provision, Section 1557, that is easily one of the most significant pieces of civil rights legislation to be enacted in the last 50 years. But because the anti-trans panic had not yet bubbled over, that provision flew right under the radar.
Section 1557 prohibits any entity receiving federal funds from discriminating on the basis of sex in health-care related programs and activities. Specifically, it forbids the denial of health care or health coverage on the basis of sex, including discrimination based on pregnancy, gender identity, and sex stereotyping.
But that’s not all.
It also mandates the delivery of reproductive health-care services like abortion and sterilization at any health-care facility, including health-care facilities that are religious or have religious affiliations, because to deny those services would be to discriminate based on a pregnancy-related condition. In addition, covered health programs and activities are required to treat individuals consistent with their gender identity.
In other words, Section 1557 expressly prohibits anti-transgender discrimination and refusals to provide reproductive health care. And, critically, the law does not provide any additional carve-outs or exemptions for religious objection.
During his regime, Trump did his level best to stick it to trans people. Remember when he woke up one day and decided to ban trans people from serving in the military? Or how about the time he decided to attack civil rights for trans people by erasing trans people out of existence? After all, everyone knows if you simply adopt strict gender definitions, trans people cease to exist.
Part of his campaign of terror included gutting Section 1557 in order to permit discrimination against trans people in health care. Even after Justice Neil Gorsuch delivered a surprising ruling in last year’s Bostock v. Clayton County—that’s where the Supreme Court said Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation and gender identity—the Trump administration failed to enforce the rule across federal agencies, still insisting that Title VII doesn’t protect LGBTQ people from discrimination.
Trump wasn’t exactly one for following the rule of law—or the rules of basic human decency, for that matter. The Biden administration has taken a very different approach: In January, one of the first orders Biden signed implemented the Bostock decision and directed federal agencies to comply with it. This latest move by HHS to reverse the Trump administration’s actions on Section 1557 is another step in the right direction.
Now that this country is in the throes of an anti-trans panic that has produced an onslaught of legislation aimed at hurting trans people, and trans youth in particular, civil rights protections for trans people are at the center of a national conversation. That includes the rights protected by Section 1557.
Legislation banning transgender girls from competing on girls’ sports teams in public school has been enacted in Alabama, Arkansas, Tennessee, Mississippi, Montana, and West Virginia, and Gov. Kristi Noem in South Dakota implemented a similar ban via executive order. Those laws are likely going to meet the business end of Title IX, which prohibits discrimination against trans people by schools that obtain federal funding.
And earlier this year, Arkansas became the first state to criminalize providing gender-affirming care to trans youth, with lawmakers in Alabama, Tennessee, and Texas considering similar measures. Texas lawmakers have gone so far as to introduce legislation that would make it child abuse for a parent to seek gender-affirming care for their child, which could lead to Child Protective Services removing trans children from loving, accepting homes. Those laws can say hello to Joe Biden’s little friend: Section 1557.
You shouldn’t feel bad if you’ve never heard of Section 1557. That’s because when the ACA was signed into law in 2010, no one really cared about Section 1557. The religious right was laser-focused on the contraception mandate and ensuring that religious nonprofit and for-profit organizations could refuse to provide birth control coverage in the health insurance plans they were offering their employees. The anti-trans panic that is now sweeping the nation had not yet become a Republican obsession. Even North Carolina’s notorious “bathroom bill,” a law banning transgender people from using the appropriate public bathroom, was still six years away.
In late August 2016, the attorneys general in five states—Texas, Kansas, Kentucky, Nebraska, and Wisconsin—apparently woke up, and they filed a lawsuit challenging 1557 on the same basis that conservative lawyers had been using to challenge the contraception mandate for six years: They argued that the law didn’t make allowances for religious exemptions. You know—because what you want in a doctor is someone who took the Hippocratic oath, but has nevertheless decided that they just don’t want to treat people they don’t like: pregnant people seeking abortions or transgender people seeking gender-affirming care.
Section 1557 “forces doctors to perform controversial and sometimes harmful medical procedures ostensibly designed to permanently change an individual’s sex—including the sex of children.” That was their complaint.
Tough shit, seems to be the Biden administration’s response thus far. I can’t say I disagree.
What’s more, the Biden administration has indicated that it’s going to jump into the state-level fights over legislation targeting transgender people, and when that happens—because let’s face it, it’s gonna happen—court watchers and law nerds across the country are in for a hell of a ride.
Chet Hanks may have predicted summer 2021 would be “white boy summer.” But in reality, summer 2021 is fixin’ to be Brown Lawyer summer, with Becerra, Associate Attorney General Vanita Gupta, and soon (I hope) Kristen Clarke using the power of the Department of Justice to actually protect people’s civil rights instead of doing what Trump did for four years: using the DOJ as his personal consiglieri.