Judging by the headlines, you’d think that the Trump administration dealt a major blow to trans civil rights on Friday. “Transgender Health Protections Reversed by Trump Administration,” reads one headline from NPR. “Trump Administration Rolls Back Obama-Era Transgender Health Care Protections,” reads another from CNN.
In reality, that didn’t happen. What did happen is that the Department of Health and Human Services announced that it had finalized a rule regarding the implementation of the Affordable Care Act’s prohibition against discrimination on the basis of sex, stating that this statutory provision would no longer cover trans people or people who are pregnant, which doubles back on an Obama-era interpretation to the contrary. What did happen is that a bunch of cis journalists framed the news irresponsibly in their coverage, triggering an unnecessary panic among trans people on social media, who’d naturally assumed they’d just lost all access to gender-affirming care. What did happen is nothing—at least not yet.
To learn more about the HHS’s proposed rule and what it means for trans people, Jezebel spoke with Chase Strangio, the Deputy Director for Trans Justice with the American Civil Liberties Union’s LGBT and HIV Project.
“What this final proposed rule does is that it erases the definition of sex-based discrimination that the Obama administration put out in 2016,” Strangio says. “It does not put forth an affirmatively different definition of sex-based discrimination itself.”
The panic over the announcement makes perfect sense, Strangio explains, given the Trump administration’s track record of reversing Obama-era protections for trans people, but it’s not needed. The proposed rule would neither override all the state and local laws prohibiting healthcare discrimination on the basis of gender identity, nor would it undo the strong legal precedent based on many past court rulings that interprets sex-based discrimination to include discrimination against trans people.
What’s more, Strangio adds, is that the Supreme Court could render the HHS rule functionally useless in a matter of days, depending on how the justices rule in the trio of Title VII cases dealing with LGBTQ employment discrimination.
“The Supreme Court is literally considering that question right now right now,” he tells Jezebel. “This is purely political posturing on the part of the HHS. Normally, a government agency would await guidance from a judicial body before issuing a regulation. The HHS didn’t do that. It put out 400 pages of what’s essentially a J.K. Rowling-esque screed to make a point. If the Supreme Court rules in favor of Aimee Stephens [the late plaintiff in one of the Title VII cases who was fired for being trans], this proposed rule is going to be void.”
Should the Supreme Court rule against Stephens and the other plaintiffs, Congress can still override any ruling about sex-based discrimination the HHS puts forth by passing the Equality Act—though its passage is unlikely, given the Republican-controlled Senate and Trump’s demonstrated antagonism towards trans people.
“If the Supreme Court rules that ‘sex’ doesn’t include trans people, we will of course have to grapple with that,” he says. “We can do that by flipping the Senate and voting out the President in November so that we have people there who are supportive of the Equality Act. If that passes, it ultimately doesn’t matter what Title VII had said about the Afforable Care Act because that legislation would supercede it. I don’t believe that formal equality will be the answer, but making sure that we have the option of passing the Equality Act and undoing what the court has done, if they rule against us in the Stephens case, is going to be huge. That requires flipping the Senate, and that requires Trump losing the election.”
Still, Strangio recognizes that the proposed rule, however toothless, could embolden state legislatures to pass anti-trans legislation in future sessions—as well as your average, everyday person to be a dick to trans people. That’s why he advises that we pay special attention to down-ballot elections this November and organize accordingly.
“There’s a chance to flip one chamber in the Texas legislature from majority Republican to majority Democratic,” he says. “Some of the most egregiously anti-immigrant, anti-trans, pro-police laws come out of Texas. How can we organize to slow down and stop these attacks on people’s ability to survive?”