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Restricting Trans Students’ Rights Would Also Gut Healthcare Nondiscrimination Law
By Siobhan M.
Earlier this month, House Republicans passed Speaker Mike Johnson’s rules package for the new Congress, which set a list of bills Republicans consider their top priorities. This included crackdowns on abortion providers and immigrants and additional protections for police. House Republicans’ first priority, though, is to ensure that for purposes of Title IX—the federal law prohibiting sex-based discrimination in education—“sex shall be recognized based solely on a person’s reproductive sex biology and genetics at birth.” This is, on its face, a ban on school sports participation by transgender students, and news coverage of the proposal has largely reflected that. Some coverage has also correctly reported that this would give schools license to discriminate against trans students on other issues like bathroom or locker room access. However, absent from most reporting is a massive legal consequence of the bill: it would be a giveaway to private health insurance companies, and large employers who pay health insurance costs, by effectively removing nondiscrimination requirements for many insurance and medical providers.
To understand why, a brief explanation of somewhat convoluted federal law is necessary. When the federal government prohibited some discrimination in healthcare in 2010, it did not directly name the classes it protected from discrimination. Instead, it banned discrimination—in healthcare or insurance providers that receive federal funding—“on the ground prohibited under” other federal laws. One of these “prohibited grounds” comes from Title IX, where some federal appellate courts have ruled that the prohibition on sex-based discrimination includes discrimination against LGBTQ+ students. Based on these appellate court holdings—which are disputed in more conservative circuits, and to some extent at the Supreme Court—queer and trans people should also be protected from discrimination in covered healthcare settings.
Republicans seek to settle this debate by ensuring that covered insurance providers can deny insurance claims from their queer and trans customers with impunity. Under their proposed HB28 and the paired senate bill, sex under Title IX would be defined exclusively by “a person’s reproductive biology and genetics at birth,” and healthcare nondiscrimination law would be worthless against an insurer denying coverage for a lesbian couple’s fertility treatment or a trans woman’s orchiectomy. Under this definition, legal advocates for LGBTQ+ people could still argue that some anti-LGBTQ+ discrimination is prohibited sex discrimination, but federal law defining trans women as men, and vice versa, will dramatically narrow the scope of these potential arguments. In the aggregate, systematic denial of these claims would allow health insurance companies and employers to grow their profits on the backs of some of the poorest demographic groups in America.
Despite these high stakes for healthcare access, discussion of the Republican proposal has been framed almost exclusively in terms of sports participation. Articles from Politico, Fox News, and ABC’s National News Desk all discuss this purely as an issue of sports participation. Democratic lawmakers largely avoid talking about transgender issues altogether, and some have even voiced support of sports participation bans. By altogether ignoring the effects on healthcare access, this discussion hides the material benefits of the proposed ban for private employers and health insurance companies and instead cynically pits trans nondiscrimination rights against cis women.
These changes would even help insurance companies discriminate in blue states like Massachusetts. While Massachusetts state law prohibits many health insurers from discrimination against queer and trans people, a loophole in this law means it does not apply to employers who “self-insure,” which tend to be the largest corporations. For workers at these large employers, this bill would strip crucial federal protection while allowing their bosses to rake in even greater profits.
Ultimately, as long as private health insurance exists, its profiteers will continue denying necessary medical care. This is their business model, and they reinvest enough profits in bipartisan political contributions to ensure neither capitalist party, Democratic or Republican, will challenge their extortion of the American people. While we must fight this Republican effort to further restrict LGBTQ+ healthcare, we must also recognize that true queer and trans liberation requires a vision of healthcare, including gender-affirming transition-related care, that is free to all as a basic human right.
Siobhan M. is a member of Boston DSA and the National Organization of Legal Services Workers, UAW 2320. The views expressed herein are her own and do not represent her employer.
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