by Nicole Freeman (University of Virginia)

On June 12, 2020, in the midst of the COVID-19 pandemic, the Trump administration issued a “final rule” implementing changes to Section 1557 of the Affordable Care Act which “prohibits discrimination based on race, color, national origin, sex, age and disability in certain health programs or activities”. This final rule tapers the efforts of changes made in 2016 by the Obama Administration, as it eliminates protections against discrimination on the basis of gender identity, including health insurance safeguards for transgender** Americans among other marginalized populations.

The administration’s final rule took effect August 18; however, several federal district courts – particularly in New York and DC – issued injunctions blocking certain clauses of the final rule. Other federal court cases are pending, and further litigations are likely to proceed, yet the concerning reality is that the health and safety of trangender individuals in America are at risk and their lives are at the mercy of the slow moving judicial system of a country whose attention is currently fixated on the heightened pandemic and the tumultuous transfer of presidential power between political parties.

The US Department of Health & Human Services projected that the final rule changes to Section 1557 will garner $2.9 billion in undiscounted cost savings just in the first five years of enactment. Thus, it is clear that political agendas and economic protection are being prioritized by the US government at the expense of transgender individuals basic human right to adequate healthcare. Although it is likely that the incoming Biden Administration will take strides to reinstitute safeguards against discrimination according to gender identity, this current political and social crises raises much needed concern for the lack of respect for nonconformity to the “traditional” gender binary that permeates the American political climate. Healthcare discrimination for transgender individuals is more than a political polarized topic – it is a human rights violation in desperate need of adequate attention and action.

Nearly all transgender individuals can attest to experiencing some degree of discrimination or judgement from medical professionals according to stigmas associated with gender identity. A stigma can be described as “the co-occurrence of labeling, stereotyping, separation, status loss and discrimination in a situation in which power is exercised”. In 2015, one of the most comprehensive and large-scale cross-sectional studies to be done on transgender individuals reported a number of concerning statistical results with regards to the experiences of transgender individuals pertaining to aspects of life such as society, economics, education and healthcare. The study reported that 33% of participants who received health care admitted to enduring at least one negative experience with their healthcare provider as a result of their gender identity. These negative experiences ranged from verbal harassment and refusal of treatment to such severe abuse as physical or sexual assault. As a result of fear for such maltreatment, 23% of participants admitted that they neglected seeking medical treatment when necessary. This blatant lack of understanding and cultural awareness on the part of medical professionals has clearly become a hindrance for transgender individuals to receive the proper care they deserve – or to even seek care at all. 

Although great strides have been taken in recent years to normalize gender nonconformity on the grand social scheme, social stigmas toward transgender individuals have persisted, even in the medical field among thoroughly trained professionals. As a result of awareness of minority treatment, felt stigmas often prevent transgender individuals from disclosing important medical information to their doctors such as sexual orientation and gender identity. This lack of transparency can be very dangerous, as it hinders a medical professional’s ability to properly screen the patient based on generalizable concerns. Particularly, the transgender population is disproportionately plagued by HIV with the 2015 cross-sectional study reporting that 1.4% of respondents live with HIV compared to 0.3% of the US population at the time. The reported rate for Black transgender women is outstandingly higher at 19% of respondents, suggesting the intersectionality of racial and gender discrimination contributing to insufficient education and healthcare treatment. If transgender individuals were given a safe, discrimination free medical environment, they would be much more likely to openly discuss their gender identity and thus better served by medical professionals.  

Furthermore, much of the implicit bias and discrimination projected by medical professionals onto their transgender patients is not only a result of prolonged social stigmas but also educational curiosities that are not adequately address in academics and professional training. In an interview based study of transgender experiences in healthcare, various individuals expressed feeling like a “live teaching material” or a “dictionary” when seeking medical care. Medical professionals may pose inappropriate questions about the individual’s transition or ask to see a body part not pertinent to the current health issue being treated, claiming they just want to learn. One respondent disclosed an experience in which they asked the physician not to comment on their genital organ, yet the physician ignored this request and proceeded to discuss the perceived effectiveness of the hormones that the patient was taking.

Similarly, another respondent described unwanted attention being brought to their gender identity in inappropriate instances. One respondent recounted a situation in which they sought psychological counseling when grieving the death of a close relative; however, the medical professional continued to discuss the gender identity of the individual rather than focusing on the pertinent situation. Although an important part of the educational process for medical professionals is hands-on experience in the health care setting, it is unfair to treat transgender individuals as “guinea pigs” or anomalies for one’s learning pleasure. Such open curiosity can make transgender individuals feel abnormal or self conscious and the discomfort created may discourage them from seeking medical care in the future. Ultimately, it is the job of medical professionals to educate their patients, not the job of transgender patients to educate their providers.  

As such, the lack of proper educational exposure to diversity in gender identity as it pertains to medicine has become apparent through implicit and explicit discrimination of transgender individuals in the American healthcare system. To rectify such violations of the basic human right to proper healthcare, it is imperative that medical professionals are more thoroughly educated on transgender health – not only during formal schooling, but through ongoing training in the workplace. In order to be effective and provide excellent care, it is essential for medical professionals to expand and adapt their medical knowledge as society develops and more people become open about their gender identity. 

Education and training on the treatment of transgender individuals must be emphasized from the early stages of medical education. Learning about proper physical care and bedside manners for transgender individuals, particularly what to expect in the process of gender transition, must be established as part of standard clinical training for all medical professionals. A meta-analytic review that studied educational interventions to reduce gender and sex-based discrimination confirmed that education – particularly a multimedia based approach through lectures, films, and scientific readings – was moderately effective in reducing negative stigmas towards individuals who do not conform to the traditional gender binary. 

Though it is not the responsibility of transgender patients to educate their peers on their experiences, facilitating greater inclusion of transgender individuals in the medical community may contribute to the reduction of negative stigmas towards diversity of gender identity. Thus, schools for medical professionals ought to prioritize and foster diversity and inclusion in medicine beginning with the classes of medical professionals themselves. By surrounding medical professionals with the diverse perspectives of their peers, they may be more likely to become increasingly open minded and understanding toward the transgender experience, creating cultural competency which can be translated into their relationships with patients. Ultimately, the priority with a focus on education is to create a comfortable environment in which transgender individuals feel equally valued, respected, and cared for as any other patient so they continue to seek and receive the quality care they deserve as human beings.

However, increased education and cultural competency among medical professionals is not the end all-be all for ensuring comprehensive prevention against discrimination for transgender individuals in the American healthcare system. As access to proper healthcare has become increasingly politicized in the US, government intervention and reform is a necessary aspect in implementing reliable anti-discrimination policies. Much of the political turmoil and disagreement pertaining to Section 1557 of the ACA involves disagreement about the definition of “sex” in stating “prohibits discrimination based on … sex.” 

To prevent misinterpretation and ensure protection of all individuals who do not conform to the male-female gender binary, it is essential for government leaders to establish a comprehensive and fully representative definition of “sex” within the ACA. This requires better collaboration between politicians and the medical/scientific professionals who have a strong understanding of the sexual and gender spectrums based on years of education, research and experience. Ultimately, it is essential for these powerful individuals to accept that proper healthcare for transgender individuals should not be recognized as a political disagreement. It is a medical issue and a violation of basic human rights. 

**For the purpose of clarity and consistency, this article will use the term transgender, as defined in The report of the 2015 US transgender survey: executive summary, to describe “people whose assigned sex at birth differs from their gender identity or expression, as well as those who vary from or reject socially/culturally constructed definitions of gender in terms of the female-male dichotomy” (rodriguez). It is recognized that many individuals choose different words to describe their gender identity and personal situation, and there is no singular term to adequately describe such a diverse group of people. 

Sources:

Section 1557 of the Patient Protection and Affordable Care Act. (2020, November 19). US Department of Health and Human Services. Retrieved December 19, 2020, from https://www.hhs.gov/civil-rights/for-individuals/section-1557/index.html.

Musumeci, M. (2020, September 18). Section 1557 Non-Discrimination Regulations Under the ACA and Current Status. Kaiser Family Foundation. Retrieved December 19, 2020, from https://www.kff.org/report-section/the-trump-administrations-final-rule-on-section-1557-non-discrimination-regulations-under-the-aca-and-current-status-issue-brief/#endnote_link_483730-18

Musumeci, M. (2020, September 18). Section 1557 Non-Discrimination Regulations Under the ACA and Current Status. Kaiser Family Foundation. Retrieved December 19, 2020, from https://www.kff.org/report-section/the-trump-administrations-final-rule-on-section-1557-non-discrimination-regulations-under-the-aca-and-current-status-issue-brief/#endnote_link_483730-18

Sabin, J. A., Riskind, R. G., & Nosek, B. A. (2015). Health care providers’ implicit and explicit attitudes toward lesbian women and gay men. American Journal of Public Health, 105(9), 1831-1841.

James, S. E., & Herman, J. (2017). The report of the 2015 US transgender survey: executive summary. National Center for Transgender Equality.

Lindroth, M. (2016). ‘Competent persons who can treat you with competence, as simple as that’–an interview study with transgender people on their experiences of meeting health care professionals. Journal of clinical nursing, 25(23-24), 3511-3521.

Sabin, J. A., Riskind, R. G., & Nosek, B. A. (2015). Health care providers’ implicit and explicit attitudes toward lesbian women and gay men. American Journal of Public Health, 105(9), 1831-1841.