Late last week, the Biden administration announced it had finalized federal rules protecting trans people from discrimination in health care facilities. It’s the latest move the White House has taken to try to stem the relentless attacks on access to gender-affirming care by red-state legislatures over the last few years.
The rule resets Section 1557 of the Affordable Care Act, which protects patients from discrimination based on sex, to include gender identity. President Joe Biden’s version of the rule returns the protections to what they were when the law was initially implemented by the Obama administration in 2016. The restored rule brings the landmark health care law in alignment with how the conservative Supreme Court defined sex discrimination in Bostock v. Clayton County, a 2020 ruling that banned employment discrimination against LGBTQ people.
The 2024 US Trans Survey showed that 24% of all trans people did not see a doctor when they needed to in the last 12 months due to fear of mistreatment.
Biden’s decision is a small but important step in the fight back against the onslaught of right-wing attacks in conservative state legislatures. But it’s a far cry from the guaranteed protections trans people need.
In 2018, the Trump administration finalized its own rule to define sex as sex assigned at birth, ostensibly legalizing discrimination against trans people by medical providers. The back-and-forth between successive Democratic and Republican presidencies has left trans people in legal limbo on the federal level as the national political rhetoric against us has ramped up to extremes over recent years.
The renewed rule gives Biden’s Health and Human Services agency more leverage to punish health care providers and state health policies that discriminate against trans people. It also gives the agency and plaintiffs in federal lawsuits an additional basis to sue states over bans on gender-affirming care.
But because it’s a federal rule only defining how the executive branch enforces the law, it is subject to the whims of whoever controls the White House.
To be sure, if Trump is re-elected this fall, the rule will flip back toward once again allowing discrimination, throwing trans access to good health care back into chaos and to the whims of potentially bigoted doctors. The 2024 U.S. Trans Survey showed that 24% of all trans people did not see a doctor when they needed to in the last 12 months due to fear of mistreatment.
Unfortunately for trans people in the U.S., there’s little hope of a permanent solution anytime soon. It’s unlikely that legislation laying out a specific definition for the law would pass Congress as long as the Senate filibuster remains in place. It’s much more likely that a permanent solution will come through the federal court system.
With the congressional branch essentially paralyzed by the filibuster, so many permanent policy solutions have come from the Supreme Court, and the definition of sex under the Affordable Care Act is probably no different.
There is currently a circuit split on the issue, with the 5th Circuit U.S. Court of Appeals refusing to use the Bostock definition of sex while several other federal circuits have ruled that trans people are protected under the law. The Supreme Court is more likely to hear a future case if different circuits disagree.
That’s a scary proposition for trans people, as the court is overwhelmingly conservative, and a ruling against protections could have far-reaching implications both in and out of doctor’s offices. A fresh case could even allow the court’s more conservative members to overturn the Bostock decision and breathe new life into conservative plans to “eradicate” trans people from public life.
All of this comes as conservatives’ legislative will to persecute trans people has relatively waned of late. Several recent news reports have shown that state-level Republican legislators have cooled to the idea of passing more anti-trans laws, especially in an important election year. Numerous polls have shown that voters generally don’t care about trans issues, and instead tend to focus on the economy, immigration and crime, prompting Republicans to dial back their legislative attacks on trans people this year.
Historically, appetites for anti-LGBTQ lawmaking have ebbed and flowed. Bans on gay marriage hit a high point around the 2004 presidential election, before somewhat cooling off as a deeper media debate fossilized and court cases began to make their way through the judicial system. We’re likely to see a similar trajectory with anti-trans laws, though it would be wise to watch how Republicans approach trans issues once this election year is out of the way.
Until Congress, or much more likely the Supreme Court, decides whether we are worthy of having the same right not to be discriminated against as everyone else, trans people are left at the mercy of the office of the presidency. That makes the 2024 presidential election, and every federal election thereafter, very important for U.S. trans people until a permanent solution is rendered — or until Republicans back off their obsession with trans bodies.
