Federal Government Reinforces Nondiscrimination Rules, Despite State Efforts to the Contrary
by Sonya Rahders, Law Students for Reproductive Justice Fellow
News from many state legislatures has been disappointing lately, with sweeping bans on abortion in Oklahoma and attacks on LGBTQ rights in North Carolina and Mississippi. And while activists on the ground fight back against these blatantly unconstitutional attacks on the health and rights of young people, the Federal Government has taken affirmative steps this week to show that they stand with them. Last Friday, two breaking documents clearly outlined where the Obama Administration and their agencies stand on discrimination – they aren’t having it.
U.S. Department of Education Policy Letter on Transgender Students
Title IX is the provision of federal law that prevents discrimination in schools. It applies to all schools that receive any federal funding, from kindergarten through college. Title IX prohibits discrimination in schools based on sex, and has been used historically to protect women’s athletics, and equal educational opportunity for pregnant and parenting students. The Department of Education released a letter on May 13, 2016 stating unequivocally that Title IX also protects transgender students. While court cases and other interpretations had said this before, the letter gives schools clear notice what standards will be used to determine discrimination, and what type of actions are impermissible.
“A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.”
The letter explains in no uncertain terms that transgender students must be treated in accordance with their gender identity, regardless of whether they have made any physical, medical or legal changes to their name or sex as assigned at birth. Both cisgender and transgender students must be given equal access to all programs and facilities; and transgender students cannot be forced to use separate locker rooms or restrooms. The guidance letter explains that all harassment is prohibited, and reaffirms students’ rights to privacy. The letter also clearly outlines definitions of gender identity, sex assigned at birth, and transgender.
Nondiscrimination under the Affordable Care Act
Also on May 13, the U.S. Department of Health and Human Services released the final version of the Affordable Care Act’s nondiscrimination provision. This rule, also referred to as Section 1557, is the first federal law to prohibit discrimination on the basis of sex in federally-funded health programs. This means that the vast majority of healthcare providers and insurance companies cannot discriminate against people, charge different rates, or refuse certain services on the basis of sex. The law also prevents discrimination based on disability, English-language proficiency, race, color, national origin, and age. It requires expansive language access services, as well as accommodations for people living with disabilities.
Prohibited sex discrimination under the rule explicitly includes discrimination based on sex stereotyping; gender identity; and pregnancy, including termination of a pregnancy. It states that health programs and providers must treat people according to their gender identity, and must provide access to all health services that the person needs even if such services are traditionally inconsistent with their gender. Insurance companies also cannot refuse to cover broad categories of services, such as healthcare for transgender people, or pregnancy care. While the rule does not explicitly prohibit discrimination based on sexual orientation, HHS has stated that they will investigate complaints of such discrimination as broadly as possible under the category of prohibited sex stereotyping.
These, and many of the other broad provisions of Section 1557, will protect healthcare access for many communities and individuals that have been historically underserved. The law has been in effect since 2010, but the new lengthy rule clarifies for both consumers and providers just what protections exist – and there are many! We are hopeful that many people will feel more empowered to seek the healthcare that they need. This is a huge step forward in ensuring safe and appropriate healthcare for LGBTQ youth, young women, pregnant people, people living with disabilities, and people who do not speak English fluently.
Though these recent documents apply to very different parts of the government, and indeed, have very different impacts on people’s lives, they paint a broader picture of support for underserved and underrepresented communities. Advocates for Youth applauds the Administration’s clear statements in support of transgender students, and their sweeping protections of people seeking healthcare or coverage. We are especially encouraged to see the Federal government prioritize the health, rights, and safety of LGBTQ young people in both school and health programs, and remain optimistic that these actions are just the beginning of broader governmental efforts to reinforce the rights of young people nationwide.