Stepping Up, Stepping Back
Terry H. Schwadron
June 16, 2020
Ah, left hand, right hand.
On Friday, the Trump administration pressed its anti-rights personality in finalizing a rule that would end nondiscrimination protections for LGBTQ people when it comes to health care and health insurance. Yesterday, the Supreme Court has ruled in what is seen as a landmark decision that civil rights law protects those very same people from workplace discrimination.
The 6–3 Supreme Court decision would seem to overrule Trump administration biases. But then, maybe lawyers will argue that workplaces are different from health plans in some way that I don’t understand.
I’m sure we’ll find out eventually, since it took civil rights lawyers an hour to file the first lawsuit about Friday’s health care rollback — in the midst of a coronavirus pandemic.
You have to continue to give the Trump administration a gold star for its failure to be listening to public sentiment on these issues. Whether planning a campaign rally on Juneteenth in the midst of nationwide upheaval over race, or calling cadets at West Point to stand pointlessly by during a graduation in virus season when parents could not attend and speaker Trump was having a hissy fit with dissenting generals or in clearing out “terrorist” peaceful protesters outside the White House for a photo op with a Bible, we can count on Team Trump to show off a tin ear for exactly the kind of optics that pass as leadership these days.
Details notwithstanding, at the heart of the Supreme Court decision was the finding that bars against employment discrimination based on race, religion, national origin and sex include gay and transgender people. As the case specifics suggested, you can’t fire someone after a declaration or signal of sexual orientation or choice as a subset of the sex mention in the Civil Rights Act of 1964.
Trump’s View
So, what was the Trump administration claim about health care?
It turns out that the Trump administration — this time through the Department of Health and Human Services — defines “sex discrimination” as only applying when someone faces discrimination for being female or male, and does not protect people from discrimination on the basis of sexual orientation or gender identity.
Um, now officially, legally wrong.
Rather, both supporters and opponents of the new rule argue that this is Trump reaction to Obama-era executive overreach. Team Trump would also extend that thinking to the question of allowing transgender troops in the military, to educational settings where fighting over what bathroom to use still lands among the top ten issues for some Trump voters, or transgender participation in youth sports.
The rule focuses on nondiscrimination protections laid out in Section 1557 of the Affordable Care Act, which established that it is illegal to discriminate on the basis of “race, color, national origin, sex, age or disability in certain health programs and activities.” In 2016, an Obama-era rule explained that protections regarding “sex” encompass those based on gender identity, which it defined as “male, female, neither, or a combination of male and female.” The Trump administration has been seeking for a year to overturn the rule, finalizing the action just on Friday.
Under the new rule, a transgender person could, for example, be refused care for a checkup at a doctor’s office or hospital, could be denied treatment for ovarian cancer, or a hysterectomy not being covered by an insurer — or costing more when the procedure is related to someone’s gender transition.
Enter the Supremes
The two sets of cases before the Supreme Court were direct — and both depended on exactly the kind of statutory interpretation that Team Trump has been making in health and educational rules.
The first settled a pair of lawsuits from gay men who said they were fired because of their sexual orientation, while the other concerned a suit from a transgender woman, who said her employer fired her when she announced that she would embrace her gender identity at work.
The language of the majority decision by Justice Neil Gorsuch was clear: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear,” Gorsuch wrote. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The other justices argued that the 1964 law never mentioned LBGTQ.
The Trump administration sided with the employers, a position that put it at odds with the Equal Employment Opportunity Commission, which decided in 2015 that gay and transgender people were federally protected.
Of course, Congress could be passing legislation about such things, but then maybe pigs should be flying.
In the meantime, America is specializing in making The Other constantly queasy.
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