It really shouldn’t surprise anyone that the Trump administration rolled out its new rule denying trans people access to proper healthcare on the fourth anniversary of the massacre at the LGBTQ Pulse nightclub, in which 49 people died in Orlando, Florida.
It shouldn’t surprise anyone that the Trump administration published the rule during LGBTQ Pride month. The cruelty is the obligatory scattering of garnish for the Trump administration; the sting long after the slap has been delivered. The cruelty is relished just as much as the intended harm. The cruelty, as the Atlantic’s Adam Serwer once observed, is the point.
The religious freedom-supporting Roger Severino, who directs the Office for Civil Rights in the Department of Health and Human Services, was presumably delighted to announce, after weeks of is-it-coming?, that the new rule will make clear that “sex discrimination” will not protect people from discrimination on the basis of sexual orientation or gender identity.
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Instead, HHS announced, it “will enforce Section 1557 (of the Affordable Care Act) by returning to the government’s interpretation of sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.”
The Trump administration’s move rolls back an Obama-era provision which made “sex discrimination” encompass gender identity and sexual orientation; and which made it illegal to discriminate against LGBTQ people in healthcare settings.
Under the Trump administration, Section 1557 just boomeranged back to bigotry: trans people can now be legally denied transition care, and be legally misgendered while accessing whatever other healthcare they are able to get.
Providers can turn down giving healthcare to an LGBTQ person, just because they feel like it. Or because their “religious freedom” is violated by having to treat the broken or wounded body part of an LGBTQ person.
That person might be very sick, they may be about to fall into unconsciousness, they may have a broken leg, but the reversed rule now gives license to a medical professional to ignore their job, their duty, and effectively say, “I don’t like LGBTQ people. I don’t see you, trans person, as a ‘man’ or ‘woman.’ Now please leave, go bleed out somewhere else.”
At least J.K. Rowling has found a friend. Just days after her screed against trans people—and the pointed repudiations of the lead Harry Potter actors, and stars like Laverne Cox—the Trump administration published its latest anti-LGBTQ attack.
A question for Rowling and her supporters: Is this the kind of “empathy” you were aiming for, the nuanced debate? Is this how you want trans people treated? Are you happy now to see a tiny minority of people even more attacked and politically and culturally delegitimized? Does this feel good?
Like the Republicans, Rowling and her anti-trans buddies are the bullies who like to claim they’re the victims, the ones with the mass-media pulpits and megaphones who claim they are being silenced. Well, here it is: a denial of healthcare aimed at a minority, codified in legislation. Great work, everyone!
An added aspect of the new anti-trans cruelty is the gaslighting, and in a now-familiar Trump administration move, Severino had the gall to state after this announcement, “HHS respects the dignity of every human being, and as we have shown in our response to the pandemic, we vigorously protect and enforce the civil rights of all to the fullest extent permitted by our laws as passed by Congress.”
This, after doing the precise opposite.
And so it has been after the trans military ban, so it has been after refusing to serve cakes, or trying to stop trans people play sports, or LGBTQ people adopting—no, no, no, we are told, this is not prejudice, this is about protecting other people’s freedom.
One always wonders as these rhetorical hall of mirrors play out: what sliver of freedom and equality does the Trump administration ever imagine LGBTQ people having? LGBTQ freedom and equality goes unmentioned at these flash-points because they are necessarily always being diminished to protect a Christian from having to bake a cake, or—now—treat LGBTQ injured bodies.
People may say that “erasure” is an extreme word for what the Trump administration is attempting with this battery of anti-LGBTQ law-making, but it feels ever more literal, apposite, and urgent. What does Pride mean, people ask. Well, it means standing up now, against this. It’s right in front of you.
The Trump administration hopes to roll the new rule out in mid-August. But they are going to be hit first by lawsuits from every civil rights group, including the Human Rights Campaign. And then there is the small matter of the Supreme Court.
As early as this Monday, the Court could issue its ruling on a trio of cases, reported on in-depth in The Daily Beast, that test whether the anti-discrimination provisions contained within Title VII of the Civil Rights Act, include LGBTQ people too.
To be blunter: the Supreme Court is about to decide, in 2020, whether it is OK to fire someone, and discriminate against them, just because they are LGBTQ.
Now, the Trump administration hopes it has loaded the dice in prejudice’s favor; justices Gorsuch and Kavanaugh have been installed to tilt the highest court in the land rightwards. But campaigners and observers are hoping against hope that justice—and many years of case-law seen in the lower courts, favoring an embracing interpretation of the Title VII—will be observed above ideology.
If the Supreme Court rules in favor of LGBTQ people, Severino, his cronies, and the Trump administration will end up with a whole lot of perfectly timed Pride egg on their faces, after years of propagating hatred and prejudice against LGBTQ people.
Even if Trump’s stacking of the Supreme Court works in his favor, and the Court rules against those years of case-law—and common human decency and the principle of equality—there is the beached Equality Act, which would set anti-LGBTQ discrimination into settled law. It passed Congress, and will never pass a Republican-controlled Senate, hence the effort on the part of LGBTQ campaigners to mobilize voters this November.
Earlier this week, I wrote about the new waiting game of nerves LGBTQ people and their allies had become used to observing every Sunday night and Monday morning awaiting that day’s Supreme Court decisions. This Monday’s will be the most nerve-wracking yet.
An unintended consequence of all the attacks on LGBTQ people is—as ever has been in grim moments of apparent political and cultural regression—a resurgent fighting spirit. In a year when most Pride Marches are canceled, the true meaning of Pride has come into sharpest focus.
