Obama admin rolls out major policies to stop discrimination on gender identity, important step on sexual orientation
The National Center for Transgender Equality called it “one of the biggest victories of the transgender community ever,” referring to the May 13 announcement by the U.S. Departments of Education and Justice that discrimination against transgender students violates a federal law against sex discrimination.
But last week saw two additional historic victories for transgender people, as well as one somewhat stilted step forward on sexual orientation discrimination in health care.
In one, DOJ announced on May 9 that it would sue the state of North Carolina, and perhaps cut federal funding to its schools and highways, if the state implements a new law restricting the use of public restrooms by transgender people.
In the other, the U.S. Department of Health and Human Services issued regulations last Friday stating that the Affordable Care Act’s prohibition on sex discrimination in health coverage and care includes a prohibition on discrimination based on gender identity.
All three developments received widespread media attention. And while national LGBT legal and political groups hailed the advancements, several governors promised a fight on at least two of the issues.
In a much less noticed development, the HHS guidelines declined to take a position that the ACA’s prohibition on discrimination based on sex includes sexual orientation. Instead, it said it would cover instances “where the evidence establishes that the [sexual orientation] discrimination is based on gender stereotypes.”
Human Rights Campaign Spokesman Stephen Peters said Friday that, while HRC is “disappointed that the regulation does not provide sufficient clarity” around sexual orientation discrimination, the prohibition around sex stereotyping “will provide significant protections” for LGBT people.
Shannon Minter of the National Center for Lesbian Rights concurred, saying the rule “recognizes that sexual orientation discrimination is inherently based on gender stereotypes, so we view it as providing comprehensive protection.”
The metaphorical truckload of legal developments around rights for transgender people came in three major areas: education, health, and public accommodations.
* In education: The Departments of Education and Justice issued to schools a “Dear Colleague Letter on Transgender Students” on what existing federal laws require of the schools receiving federal funding. The administration prepared the letter in response to an “increasing number of questions” from schools about what Title IX (prohibiting sex discrimination) of the Education Amendments Act requires.
The departments’ letter says Title IX “encompasses discrimination based on a student’s gender identity….” It identifies four areas in which schools should make efforts to ensure that transgender students have equal access to educational programs: ensuring a safe environment free of harassment; showing respect for the student’s gender identity “even if their educational records or identification documents indicate a different sex;” allowing transgender students to use the restrooms and locker rooms and single-sex classrooms consistent with their gender identity; and ensuring the privacy rights of transgender students are protected.
* In health care: The Department of Health and Human Services published in the Federal Register the final regulations for implementation of a provision of the 2010 Affordable Care Act that prohibits discrimination in certain health programs and activities. The provision, known as Section 1557, prohibits discrimination in health care on the basis of race, color, national origin, sex, age, and disability.
The HHS rules state that discrimination based on “gender identity” is a form of discrimination based on sex. The final regulations define “gender identity” as “an individual’s internal sense of gender” and note that this “may be male, female, neither, or a combination of male and female.” And they define “transgender identity” to be when gender identity is different from the person’s physical sex attributes at birth.
The final regulations cover many issues, including abortion, religious exemptions, and tribal health plans and allows private lawsuits to remedy violations. And it covers all health care delivery entities –including doctors— that receive federal funding, including Medicaid and Medicare dollars.
The final rules go into effect July 18, but health plans have until January 1 to put the changes into effect.
* In public accommodations: As reported early last week, the U.S. Department of Justice announced it would sue North Carolina and do “everything we can to protect [transgender people] going forward.” U.S. Attorney General Loretta Lynch made the announcement just hours after North Carolina Governor Pat McCrory said his state was filing a lawsuit asking a federal court to declare valid House Bill 2 (HB2). The law, passed in March, requires people use public restrooms based on the gender indicated by their birth certificate.
HB2 also limits local non-discrimination laws to protected categories included in the state law (which does not protect against sexual orientation or gender identity discrimination).
Walking some very narrow lines
In explaining its final regulations concerning non-discrimination under the Affordable Care Act, HHS noted that “Some religious organizations … strongly supported a religious exemption, arguing that faith-based health care providers and employers would be substantially burdened if required to provide or refer for, or purchase insurance covering, particular services such as gender transition services.”
HHS noted that “none” of these religious organizations “asserted that there would be a religious basis for generally refusing to treat LGBT individuals.” Instead, they said “particular services, such as services related to gender transition…are inconsistent with their religious beliefs.”
HHS noted that its final regulations do not displace existing federal law, such as the Religious Freedom Restoration Act, with respect to religious beliefs. While Section 1557 does not contain a blanket religious exemption, says the rule, “Claims under RFRA” would be examined on a “case-by-case basis.”
HHS noted that “many” people and organizations that commented on the proposed regulations asked that the prohibition of discrimination on the basis of sex include discrimination on the basis of sexual orientation. Others, it said, argued against that. HHS said that it supports inclusion of sexual orientation “as a matter of policy.” It noted that the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins held that it was unlawful sex discrimination to treat a person differently based on his or her “failure to conform to gender-based stereotypes about how men or women should present themselves or behave.”
HHS specifically declined to say whether discrimination based on “sexual orientation alone” –absent discrimination based on gender stereotyping— is sex discrimination under the ACA’s 1557.
The Human Rights Campaign said last November it delivered more than 13,000 comments from its members and supporters about the proposed new regulations. HRC noted then that it was concerned the rules did not adequately protect against sexual orientation discrimination.
Lambda Legal Senior Counsel Jenny Pizer said that, while the HHS guidelines are “leaving for a future day whether sexual orientation discrimination per se is sex discrimination,” it indicated “that further guidance may well be forthcoming” as additional case law develops.
“Our view is that the protection afforded by the final rule released [Friday] is robust, legally solid, and will be a powerful tool for challenging—and deterring— discrimination,” said Pizer. “It will make a transformative difference as a practical matter. The key is in the definition of ‘sex stereotypes’ which says: ‘Sex stereotypes also include gendered expectations related to the appropriate roles of a certain sex.’”
LGBTQ Gay & Lesbian Advocates & Defenders attorney Jennifer Levi noted that “lots of groups and individuals” have been working with federal agencies on transgender issues for “many years.”
But for many in the general public, the issue is somewhat new. The Washington Post reported Sunday that dictionary searches of the word “transgender” “spiked more than 600 percent” on May 13 and is now at the top of Merriam-Webster Dictionary’s list of top trending searches. The dictionary says the word has been in use since 1970.
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