What the Supreme Court’s landmark ruling on LGBTQ job discrimination means for transgender health protections
A sweeping 6-to-3 decision by the U.S. Supreme Court on Monday rules that LGBTQ Americans are protected from job discrimination under existing law. The ruling’s ripple effects could extend to the Trump administration’s efforts to roll back health care protections for transgender Americans under the Affordable Care Act (ACA), or Obamacare.
On Friday, just three days before the high court’s landmark decision, the Department of Health and Human Services (HHS) finalized a rule that would undo the Obama administration’s 2016 decision to expand the ACA’s antidiscrimination provisions to include health care services for trans people.
That 2016 rule leveraged Section 1557 of the ACA, which bars certain health plans and activities from discriminating against people on the basis of “race, color, national origin, sex, age, or disability” in accordance with existing civil rights laws. Those laws include Title IX of the Education Amendments of 1972 and Title VI of the Civil Rights Act of 1964, among others.
The Obama administration regulations expanded the scope of sex-based discrimination to include refusing to provide abortion services or medical services for transgender individuals.
But the HHS’s revised regulation takes a very different approach. “HHS will enforce Section 1557 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,” it reads. In short: Many more health plans would be able to discriminate against someone on the basis of gender identity were the administration’s rule to take effect.
That’s where the Supreme Court’s anti–job discrimination decision could play a critical role. In a concise majority opinion by Justice Neil Gorsuch, the court explicitly says that discriminating against an employee on the basis of sexual orientation or gender identity intrinsically amounts to discriminating against them on the basis of sex, which is illegal under Title VII of the Civil Rights Act of 1964.
“It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” writes Gorsuch.
That blunt assessment could make it difficult for the Trump administration to effectively argue that redefining sex discrimination to what it considers “the plain meaning of the word ‘sex’” passes muster.
A HHS spokesperson declined to comment on how the ruling may affect Obamacare’s transgender health protections. But there are arguments the agency could still make—including that health care and employment are different issues, and that HHS has the authority to interpret what the ACA’s various provisions mean. Obamacare’s antidiscrimination clauses rely on Title IX, which is related to Title VII, but not quite the same thing.
The issue may be complicated still more by a religious liberty argument—one that has already been deployed. In 2019, a federal judge ruled against the Obama administration’s original rule expanding transgender health care rights, arguing that it infringed on health care providers’ religious freedoms by forcing them to provide transgender or abortion-related medical services.
Still, the bluntness of Monday’s Supreme Court decision could make HHS’s arguments an uphill climb.
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