Read: Against a federal registry of genitals
Of course, the vast majority of doctors will continue to treat trans people with respect, even if the definition is changed. But some experts worry that the new definition, if approved, will mean transgender people will face more discrimination and difficulties in the medical system.
The new definition would most directly affect a portion of the Affordable Care Act called Section 1557, which was the basis of the Obama administration’s investigations into discrimination against trans people. This section prohibits any health program or entity that receives federal funding from discriminating against people on the basis of race, color, national origin, disability, age, or sex. Under Obama, “sex” included gender identity.
Some studies have found that 70 percent of transgender people have been mistreated by medical providers. A March analysis by the progressive organization the Center for American Progress found that among a small sample of complaints—31—the most common grievances transgender people had under the policy weren’t that they were denied gender-affirming surgery. Instead, the data suggest they were just treated worse, more broadly, because of their gender identity.
According to Katie Keith, a health-policy analyst at Georgetown who focuses on transgender issues, under the new definition providers could, with impunity, repeatedly misgender their transgender patients or give them a roommate of an inappropriate gender when they’re in the hospital. Doctors could even refuse to treat a transgender patient outright. This would especially be a concern in the 30 or so states that don’t have separate, state-level antidiscrimination protections for transgender patients, Keith and others said.
In an email, HHS spokeswoman Caitlin Oakley denied this, saying the agency is only sticking to an earlier court decision. “We do not comment on alleged, leaked documents that purport to indicate the status of deliberations or the focus of the department,” she wrote. “The court order remains in full force and effect today and HHS is bound by it as we continue to review the issue. Everyone deserves to be treated with respect and HHS’s Office for Civil Rights will continue to vigorously enforce all laws as written and passed by Congress, prohibiting discrimination in health-care on the basis of race, color, religion, national origin, sex, age, and disability.”
Should this potential definition change actually go into effect, its full impact wouldn’t be felt for several more months, Keith predicts, and it will likely lead to court battles. “Transgender people who are mistreated are going to continue to sue, and use the courts to say gender identity is protected,” Keith said. “Practically speaking, it’s not going to be an immediate effect, but it’s going to be a fight.”