The Supreme Court last week handed down a landmark decision barring employment discrimination based on sexual orientation and gender identity—a significant step forward in the full inclusion of lesbian, gay, bisexual and transgender individuals in the workplace and in broader society. While this case is an important advance in civil rights, it may also undermine the Trump administration’s new health regulations designed to eliminate existing civil rights protections.
The AFL-CIO applauds the Supreme Court for its decision in Bostock v. Clay County. Our affiliates represent people in a broad array of work settings and organizational cultures. We believe a person should be judged by their actual performance on the job, not stereotypes of a particular occupation or a particular gender. Union members are protected from invidious discrimination by their employers because of union contracts that protect them from being fired or discriminated against without just cause. But the court’s ruling provides essential workplace protections for millions of workers in the 27 states without LGBTQ anti-discrimination laws.
The case also may have implications for work-based health coverage and other benefits. For example, employers may need to adjust group health plan coverage of gender dysphoria and related services, adjust benefits for same-sex and opposite-sex spouses, and review the need for gender assignment as an identifier in benefit plan administration.
The court’s ruling also undercuts the legality of harsh new regulations from the Trump administration issued three days before the court’s decision that would allow doctors, hospitals and other providers to withhold medical care from transgender people.
The court’s decision in Bostock rests on an interpretation of Title VII of the Civil Rights Act—so it doesn’t address the health care regulations directly. But those regulations rely on an interpretation of sex discrimination in Title IX of the Education Amendments Act and other laws that are quite similar to Title VII. Courts often look to interpretations of Title VII when they decide the meaning of the anti-discrimination provisions in Title IX. With the Supreme Court rejecting the administration’s narrow understanding of Title VII when it comes to hiring and firing, most experts believe the courts will look skeptically at new health regulations that seek to reduce protections against discrimination in the same way.
The AFL-CIO, along with hundreds of other organizations, submitted comments to the administration last year urging them not to go forward with these new regulations, which are part of a broader Republican effort to undermine the Affordable Care Act (ACA). As an organization that recognizes the importance of work-based health insurance, we believe it is critical that payers and health care providers provide the full range of medically necessary health care services, regardless of whether or not a worker conforms to the stereotype—whether it is a stereotype for that particular occupation or a stereotype for a particular gender.
By preventing insurers from denying coverage based on gender identity, the ACA protections have saved lives. One study found that the suicide rate among transgender and gender-nonconforming people dropped by as much as 50% in states that barred such discrimination.
Of course, the timing of these new rules couldn’t be worse—limiting access to health care during a pandemic. Turning away patients based on their sexual orientation or gender identity not only may have life-threatening implications for those individuals but the well-being of the broader community.
The next big test will be later this month when the administration must decide whether or not to publish the regulations in the Federal Register. The Supreme Court has given the administration valuable guidance on the scope of federal nondiscrimination laws. One can only hope that the administration is listening because going forward with these regulations would do nothing to help the Department of Health and Human Services fulfill its mission to promote the health and well-being of people across the nation.