Pride Month: Law and Policy Developments Affecting the LGBTQ+ Community
June 16, 2021
Pride Month is a celebration by and among individuals and communities of sometimes-hard-won acceptance and affirmation of sexual orientation and gender identity. This month, Network attorneys highlight recent law and policy developments related to health equity, sexual orientation, and gender identity.
Legislation to Limit Access to Health Care for Transgender Individuals
Jennifer Bernstein, Deputy Director, Mid-States Region Office
This year has set a record for legislation that is harmful to the transgender community. As of publication, 137 detrimental bills have been introduced across 38 states. To date, legislation has been passed in Arkansas, Florida, Louisiana, Montana, North Dakota, Oklahoma, Tennessee, and West Virginia.
On March 30, 2021, the Arkansas House and Senate overrode Governor Asa Hutchinson’s veto of AR House Bill 1570 to pass the Arkansas Save Adolescents from Experimentation (SAFE) Act. Some consider the law to be the single most extreme piece of legislation aimed at limiting transgender rights ever passed in the U.S. It explicitly targets transgender youth and forbids healthcare professionals from providing or referring anyone under 18 for “gender transition procedures.” It also prohibits the use of state funds for gender-affirming health care for transgender people under 18, and it allows private insurers to refuse to cover gender-affirming care for people of any age. Gender affirming care is “health care that holistically attends to transgender people’s physical, mental, and social health needs and well-being while respectfully affirming their gender identity.”
The Arkansas law’s definition of “gender transition procedures” is expansive. It could be interpreted to prohibit services to address psychological issues, including depression or anxiety, related to gender dysphoria. Gender dysphoria, a diagnosis in the Diagnostic and Statistical Manual of Mental Disorders (DSM-V), is the distress or discomfort an individual feels at realizing that the gender identity assigned to them at birth does not match the gender identity they feel most comfortable with.
There is disagreement within the transgender community around gender dysphoria as a medical diagnosis. Some believe that any diagnosis stigmatizes transgender people. Others believe that a psychiatric diagnosis allows for insurance coverage of medically necessary treatment for transgender people. Transgender people may seek mental health services to find support and explore their options. The goal is often to establish a comfortable gender identity and expression, and gain information to make fully informed decisions about pursuing any medical interventions.
The law also prohibits fully reversible interventions such as puberty-suppressing hormones. The use of such treatment in adolescents serves two important medical purposes. First, it provides adolescents more time to explore their gender identity and other developmental issues. Second, their use may facilitate transition by preventing the development of sex characteristics that are difficult or impossible to reverse if adolescents later pursue gender-affirming surgery.
Rather than relying on the expertise of medical professionals to develop a care plan based on individual patient needs or extensive medical guidelines that outline the standard of care for the treatment of children and adolescents with gender dysphoria, the Arkansas law prescribes what medical treatment is permissible. Ultimately, the Arkansas law fails to recognize the specific medical needs of transgender youth by prohibiting medically necessary gender-affirming health care.
One year after Bostock, the Biden Administration Takes Action Designed to Prevent LGBTQ+ Discrimination and Advance Health Equity
Carrie Waggoner, Senior Attorney, Mid-States Region Office
On June 15, 2020, the Supreme Court held in Bostock v. Clayton County that firing an employee for being gay or transgender is discrimination on the basis of sex and violates Title VII of the Civil Rights Act. Despite the majority interpreting the decision narrowly, the decision is a landmark one with far reaching implications. It confirms the Equal Employment Opportunity Commission’s (EEOC) longstanding interpretation that sex under Title VII includes gender identity. The EEOC has made it clear that discrimination based on gender identity or sexual orientation is unlawful in any aspect of employment.
The Biden administration broadened the reach of Bostock through Executive Order 13988, extending its interpretation of sex discrimination to Title IX (Education), the Fair Housing Act, and the Immigration and Nationality Act, among others. The Department of Health and Human Services announced in May 2021 that it will similarly interpret Section 1557 of the ACA, which extends civil rights protections to healthcare. These actions will provide important protections against discrimination to LGBTQ+ individuals in employment and many other sectors.
The Biden administration is one of the most LGBTQ-inclusive in U.S. history. In addition to extending the reach of Bostock, President Biden’s administration has taken many important steps to address the rights of the LGBTQ+ community, including:
- Executive Order 13985, which, among other things, revoked Executive Order 13950’s ban on diversity training content for federal agencies, contractors, and grant recipients (Jan. 20, 2021);
- Executive Order 14004, which reversed the Trump administration’s ban and began allowing transgender individuals to serve openly in the U.S. military, as well as Secretary of Defense Lloyd Austin’s commitment to take appropriate policy action to ensure individuals are able to serve in their self-identified gender and receive all medically-necessary transition related care (Jan. 25, 2021);
- Department of Veterans’ Affairs announced review of its transgender policies to ensure equity and inclusivity (Feb. 24, 2021); and
- Presidential memorandum advancing the human rights of LGBTQ+ persons around the world (Feb. 25, 2021).
President Biden has also called for the passage of the Equality Act, which would amend the Civil Rights Act of 1964 and explicitly ban discrimination based on sexual orientation and gender identity. The Act would also expand coverage of the Civil Rights Act (and all its protected classes) to federally funded programs, expand the definition of public accommodation, and preempt application of the Religious Freedom Restoration Act. The Act was passed by the House in February 2021 and is currently in committee in the Senate.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.