Estimates predict that 1.4 million adults in the United States identify as transgender. Today we unpack a recent rule proposal that could jeopardize these individuals’ access to healthcare and how the most accessible healthcare professional, the pharmacist, can advocate against this systemic discrimination.
On Monday, June 15, 2020, the Supreme Court of the United States made a monumental ruling that impacted LGBTQ+ rights in our country. In Bostock v. Clayton County, the Court decided that employers could not discriminate against LGBTQ+ workers. Specifically, it said that Title VII of the Civil Rights Act of 1964, which barred employment descrimination on the basis of “race, color, religion, sex, or national origin,” includes a prohibition of discrimination based on sexual orientation and gender identity. This is a major decision coming from the court because it makes clear that so many policies that have been enacted by the majority of states, and have been advocated for by the Trump Administration and Republican Members of Congress, are illegal. In fact, before the ruling, if you lived in one of these 27 states, employers could legally discriminate against you on the basis of sexual orientation or gender identity in employment, housing, and public accommodations. This ruling was the first Supreme Court Decision concerning any sort of protections for transgender Americans, and by establishing legal precedent, we hope that all attempts to deny members of the LGBTQ+ community access to equal opportunities are shut down.
While this is great news, this win is sandwiched by a concerted effort by the Trump Administration to revoke health care protections for members of the transgender community. On Friday, June 12, the Trump Administration released rules cutting health care protections for members of the transgender community. The new rule essentially enables healthcare providers, medical facilities and health insurance providers to discriminate against transgender patients and removes any ability for patients to fight back. This is particularly concerning because studies have shown these individuals are already at a significantly higher risk of being discriminated against by a healthcare provider during their lifetime (70% will face this discrimination). While disturbing in and of itself, what is worse about this rule is that it is being released while the nation is in the midst of a national conversation about the impacts of systemic racism in all elements of society, including healthcare, in the aftermath of the numerous murders of members of minority populations by police officers.
The Fight For Equity in Healthcare
The Trump Administration has called their rule “The Nondiscrimination in Health Programs and Activities”, however, this does not align with the language of this rule, which in fact promotes discrimination in healthcare. HHS refers to Section 1557 of the Affordable Care Act, which protects patients from discrimination on the basis of “color, race, age, national origin, sex or diasbility” in any “health program or activity” that receives financial assistance from the federal government. The Obama Administration used this language to prohibit discrimination based on sexual orienation, pregnancy, and gender identity. Based on the original rule as written by the Obama administration, healthcare providers and insurers were required to provide medically appropriate treatment for members of the transgender community.
The Trump administration’s argument is that in sex is binary and the sex assigned at birth is necessary for healthcare. They also go on to argue that providing healthcare to members of the transgender community may be confusing for providers. The argument here grossly mischaracterizes the healthcare needs of these individuals and undermines the commitment to lifelong learning that providers embark on when pursuing careers in health care.
The new HHS rule also goes further and affects regulations pertaining to transgender health access, including cost-sharing, health plan marketing, and benefits.
What about the Supreme Court Ruling?
Despite the decision from the Supreme Court, the Trump Administration moved ahead on Friday and finalized the rules with HHS publishing the proposed rule in the Federal Register, with a “start date” of August 18. This regressive and almost certainly non-coincidental move is especially boldfaced given the decision from the Supreme Court, which ruled broadly that laws that explicitly prevent discrimination on the basis of sex or gender also prevent discrimination on the basis of sexual orientation and gender identity. The legal argument here is the exact same, even if the context is employment versus healthcare. The distinction is technical at best and on very flimsy ground. If the legal precedent holds, then the word “sex” in Section 1557 of the Affordable Care Act includes sexual orientation and gender identity. While HHS can reject any charge of discrimination by arguing that they “respect the dignity of every human being,” their actions speak louder than their words. We all know exactly what they are trying to do.
What Can Pharmacists Do In the Meantime?
As equity takes center stage in the broader discussion of healthcare access, it is encouraging to see all healthcare practitioners focusing on how to eliminate disparities in healthcare. Over the last few months in the aftermath of countless episodes of police violence, we’ve seen more research being highlighted out about racial disparities in healthcare and some language from professional organizations highlighting a commitment to learn more about social injustices and challenges related to health care. We must do the same thing when it comes to healthcare disparities faced by the LGBTQ+ community. Pharmacists and other healthcare professionals need to take time to learn how to use inclusive terminology in order to make LGBTQ+ patients feel comfortable when discussing their healthcare needs, and provide better health access for our LGBTQ+ patients. Resources and webinars from organizations like The Fenway Institute, Southeast AIDS Education and Training Center, the LGBT Training Curricula for Behavior Health and Primary Care Practitioners from SAMHSA and the National LGBT Health Education Center are great places to start. You can also take a look at the Healthcare Equality Index by the Human Rights Campaign.
Other steps pharmacists, students, and other healthcare professionals can take:
- Revise health intake forms to be inclusive of a variety of sexual orientations and gender identities
- Ask technology vendors to include sexual orientations and gender identities as a part of a patient’s EHR
- Allow patients to enter their own information into a database to give patients control over how they give this information to providers
- Develop and display non-discrimination policies that include sexual orientations and gender identities
- Train all staff to respectfully interact with all patients, and ask all patients what their preferred names and pronouns are.
- Create a welcoming environment within patient consultation rooms
- When asking about sexual and social histories, talk to all patients in an open, non-judgemental way
- Ask open-ended questions when talking about appearance or sexual behavior, such as “Are you in a relationship?” instead of “Do you have a boyfriend/girlfriend”
- Advocate for Professional Pharmacy Organizations to adopt policy opposing any local, state, or federal attempt to legalize healthcare discriminations based on sexual orientation and gender identity, and actively lobby against proposed rules that do
- Advocate for the inclusion content on providing care to members of the LGBTQ+ community in the curriculum of Doctor of Pharmacy programs
If our profession is serious about removing disparities in healthcare, we need to start with educating ourselves where there are gaps. We can do the work today to teach ourselves how to take better care of our patients, and then advocate for structural changes to better promote health access for all of our current and future patients.