The Biggest Threat to Transgender Health Care Is the Supreme Court

On October 15, a federal district judge in Texas entered an order permanently barring the U.S. Department of Health and Human Services from enforcing its rule protecting transgender people from discrimination in health care under the Patient Protection and Affordable Care Act. That decision has generated confusion and fear, leaving many transgender people uncertain whether federal law will still protect them if they are denied insurance coverage for transition-related care or turned away by a hospital or other health care provider.

The good news is that health care discrimination against transgender people is still unlawful under the ACA. The Texas court's order doesn't change that. Transgender individuals who are denied coverage or refused care can still sue providers and insurers in federal court -- and win. The biggest threat to those protections, it turns out, isn't from the Texas decision. It's from the U.S. Supreme Court. More on that in a moment.

First, it's important to understand some background. The 2010 passage of the ACA, commonly known as Obamacare, created the most significant federal protections for transgender people in health care. In addition to expanding the availability of health insurance coverage for millions of people, the ACA prohibits most doctors, hospitals, and health insurers from discriminating based on sex.

In 2016, HHS issued a rule saying that discrimination against transgender people violated that anti-discrimination protections. The rule also barred state Medicaid plans and most private health insurers from categorically excluding coverage for transition-related care.

A group of religiously-affiliated health care providers and several state attorneys general immediately filed the Texas case to challenge HHS's rule. They argued that the ACA's sex discrimination provision does not prohibit discrimination against transgender people and that providing transition-related services would violate the providers' religious freedom. The Texas court tentatively agreed, and in December 2016, it entered a preliminary order preventing HHS from enforcing its rule. The October 15, 2019 decision made that order permanent.

But here's the important thing: The Texas court's decision does not eliminate the crucial protections against discrimination that are in the ACA itself. Congress created those protections, and only Congress can change them.

In fact, during the more than two and a half years that the Texas court has prevented HHS from enforcing its rule, transgender people facing discrimination by health care providers and insurers have been able to successfully sue those providers under the ACA itself.

For example, the National Center for Lesbian Rights and the Transgender Law Center filed a case on behalf of Katherine Prescott, the mother of Kyler Prescott, a transgender boy who tragically died by suicide shortly after facing discrimination by staff at Rady Children's Hospital in San Diego. In 2017, a federal court ruled that Katherine's lawsuit could proceed because, regardless of HHS's rule, the ACA directly protects transgender people in health care settings. And just this past August, a federal court permanently barred Wisconsin from enforcing a categorical exclusion for coverage of transition-related care in its state Medicaid program because that exclusion violated the ACA's sex discrimination provision.

The Texas court's latest decision doesn't prevent transgender people who are denied health care or insurance coverage from enforcing their rights under the ACA -- in Texas or anywhere else. But there's another case that could put those federal protections at risk, and it's before the U.S. Supreme Court.

On October 8, the Supreme Court heard arguments in a case brought by Aimee Stephens, a funeral director in Michigan who was fired from her job because she told her employer she is transgender and intended to transition. That case doesn't concern the ACA, but it does involve a similar legal issue: whether the Title VII of the Civil Rights Act of 1964, which also bars discrimination because of sex, protects transgender workers.

Stephens's case is not about health care, but it will affect how courts rule in future cases involving health care discrimination against transgender plaintiffs.

If the Supreme Court says Title VII doesn't protect transgender workers, that would set a negative precedent that will affect how courts apply other federal sex discrimination laws -- including the ACA. Depending on exactly how the Court rules, its decision could either confirm and strengthen protection for transgender people under the ACA, or make it harder or even impossible to sue providers and insurers that discriminate against transgender people under federal law.

That's part of what makes this the most important case involving the rights of transgender people ever to come before the Supreme Court. A decision against the employee would be a shocking reversal of more than two decades of court decisions protecting transgender workers. But it could also narrow or eliminate life-saving access to health care.

No matter what happens, we must continue to fight for a health care system that supports transgender people and ensures they are able to obtain medically necessary care. In the months ahead, as the Supreme Court ponders Stephens's case, remember that much more than the right to be free from workplace discrimination is at stake -- it is also the ability to access lifesaving care that allows many transgender people to lead healthy, authentic lives and to participate as equal members of our society.

Christopher Stoll is a Senior Staff Attorney for the National Center for Lesbian Rights.