The Assault on LGBTQ+ Health Access
https://grassrootsrph.wordpress.com/2020/06/21/the-assault-on-lgbtq-health-access/
Estimates predict that 1.4 million adults in the United States identify as transgender. Today we unpack a recent rule proposal that could jeopardize these individuals’ access to healthcare and how the most accessible healthcare professional, the pharmacist, can advocate against this systemic discrimination.
On Monday, June 15, 2020, the Supreme Court of the United States made a monumental ruling that impacted LGBTQ+ rights in our country. In Bostock v. Clayton County, the Court decided that employers could not discriminate against LGBTQ+ workers. Specifically, it said that Title VII of the Civil Rights Act of 1964, which barred employment descrimination on the basis of “race, color, religion, sex, or national origin,” includes a prohibition of discrimination based on sexual orientation and gender identity. This is a major decision coming from the court because it makes clear that so many policies that have been enacted by the majority of states, and have been advocated for by the Trump Administration and Republican Members of Congress, are illegal. In fact, before the ruling, if you lived in one of these 27 states, employers could legally discriminate against you on the basis of sexual orientation or gender identity in employment, housing, and public accommodations. This ruling was the first Supreme Court Decision concerning any sort of protections for transgender Americans, and by establishing legal precedent, we hope that all attempts to deny members of the LGBTQ+ community access to equal opportunities are shut down.
While this is great news, this win is sandwiched by a concerted effort by the Trump Administration to revoke health care protections for members of the transgender community. On Friday, June 12, the Trump Administration released rules cutting health care protections for members of the transgender community. The new rule essentially enables healthcare providers, medical facilities and health insurance providers to discriminate against transgender patients and removes any ability for patients to fight back. This is particularly concerning because studies have shown these individuals are already at a significantly higher risk of being discriminated against by a healthcare provider during their lifetime (70% will face this discrimination). While disturbing in and of itself, what is worse about this rule is that it is being released while the nation is in the midst of a national conversation about the impacts of systemic racism in all elements of society, including healthcare, in the aftermath of the numerous murders of members of minority populations by police officers.
The Fight For Equity in Healthcare
The Trump Administration has called their rule “The Nondiscrimination in Health Programs and Activities”, however, this does not align with the language of this rule, which in fact promotes discrimination in healthcare.
HHS refers to Section 1557 of the Affordable Care Act, which protects patients from discrimination on the basis of “color, race, age, national origin, sex or disability” in any “health program or activity” that receives financial assistance from the federal government.
The Obama Administration used this language to prohibit discrimination based on sexual orienation, pregnancy, and gender identity. Based on the original rule as written by the Obama administration, healthcare providers and insurers were required to provide medically appropriate treatment for members of the transgender community.
The Trump administration’s argument is that in sex is binary and the sex assigned at birth is necessary for healthcare. They also go on to argue that providing healthcare to members of the transgender community may be confusing for providers. The argument here grossly mischaracterizes the healthcare needs of these individuals and undermines the commitment to lifelong learning that providers embark on when pursuing careers in health care.
The new HHS rule also goes further and affects regulations pertaining to transgender health access, including cost-sharing, health plan marketing, and benefits.
What about the Supreme Court Ruling?
Despite the decision from the Supreme Court, the Trump Administration moved ahead on Friday and finalized the rules with HHS publishing the proposed rule in the Federal Register, with a “start date” of August 18. This regressive and almost certainly non-coincidental move is especially boldfaced given the decision from the Supreme Court, which ruled broadly that laws that explicitly prevent discrimination on the basis of sex or gender also prevent discrimination on the basis of sexual orientation and gender identity. The legal argument here is the exact same, even if the context is employment versus healthcare. The distinction is technical at best and on very flimsy ground. If the legal precedent holds, then the word “sex” in Section 1557 of the Affordable Care Act includes sexual orientation and gender identity. While HHS can reject any charge of discrimination by arguing that they “respect the dignity of every human being,” their actions speak louder than their words. We all know exactly what they are trying to do.
What Can Pharmacists Do In the Meantime?
As equity takes center stage in the broader discussion of healthcare access, it is encouraging to see all healthcare practitioners focusing on how to eliminate disparities in healthcare. Over the last few months in the aftermath of countless episodes of police violence, we’ve seen more research being highlighted out about racial disparities in healthcare and some language from professional organizations highlighting a commitment to learn more about social injustices and challenges related to health care. We must do the same thing when it comes to healthcare disparities faced by the LGBTQ+ community. Pharmacists and other healthcare professionals need to take time to learn how to use inclusive terminology in order to make LGBTQ+ patients feel comfortable when discussing their healthcare needs, and provide better health access for our LGBTQ+ patients. Resources and webinars from organizations like The Fenway Institute, Southeast AIDS Education and Training Center, the LGBT Training Curricula for Behavior Health and Primary Care Practitioners from SAMHSA and the National LGBT Health Education Center are great places to start. You can also take a look at the Healthcare Equality Index by the Human Rights Campaign.
Other steps pharmacists, students, and other healthcare professionals can take:
- Revise health intake forms to be inclusive of a variety of sexual orientations and gender identities
- Ask technology vendors to include sexual orientations and gender identities as a part of a patient’s EHR
- Allow patients to enter their own information into a database to give patients control over how they give this information to providers
- Develop and display non-discrimination policies that include sexual orientations and gender identities
- Train all staff to respectfully interact with all patients, and ask all patients what their preferred names and pronouns are.
- Create a welcoming environment within patient consultation rooms
- When asking about sexual and social histories, talk to all patients in an open, non-judgemental way
- Ask open-ended questions when talking about appearance or sexual behavior, such as “Are you in a relationship?” instead of “Do you have a boyfriend/girlfriend”
- Advocate for Professional Pharmacy Organizations to adopt policy opposing any local, state, or federal attempt to legalize healthcare discriminations based on sexual orientation and gender identity, and actively lobby against proposed rules that do
- Advocate for the inclusion content on providing care to members of the LGBTQ+ community in the curriculum of Doctor of Pharmacy programs
If our profession is serious about removing disparities in healthcare, we need to start with educating ourselves where there are gaps. We can do the work today to teach ourselves how to take better care of our patients, and then advocate for structural changes to better promote health access for all of our current and future patients.
This Supreme Court ruling may just muddy the waters every more, but what is interesting is that TESTOSTERONE is a controlled substance, whereas female hormones are not.. This could present pharmacists with another dilemma… when one subset of this group of pts need a control substance med to make the transition and the other subset medications needed is not.
Since the vast majority within this pt group are not handicapped the chronic pain community might find some assistance in getting adequate therapy in regards to controlled substances because this group tends to be more politically active to cause change and can be more VISIBLE because their activity is not impaired by having a disability.
Filed under: General Problems
Just a brief note. I see articles where the ACLU many times jumps in to advocate for, and defend the rights of, the LGBTQ+ community. In fact,, when I check the web site under “Issues” for my state’s ACLU, it includes: criminal justice reform, LGBT rights, privacy, reproductive rights, and voting rights. I note that all these are items that have pretty much made the national news. Maybe that is why there is nothing listed about the rights of intractable chronic pain patients to receive compassionate individual patient centered care for their pain.
Certainly wish they would include support for those of us in the cpp community that are handicapped individuals and getting illegally cut off from our meds (in direct violation of the ADA). But, my case was arbitrarily rejected by my state’s ACLU office stating that their funding was limited and that they had to be very selective in the cases they chose to handle.
The letter was from the ACLU board in my state, It was signed by someone who wrote their signature as a single letter so the recipient would not be able to identify the signature/person. There was no named typed at the bottom of the letter, only a notation beneath the single letter signature indicating that it came from the ACLU Board.
What a cowardly way to respond to a cpp asking for their help. To get a rejection from the board and someone wants to hide their signature as they are ashamed to own up to the fact that their rejection probably seals the death of the patient. They are another of societies agencies participating in the current T4 Program against handicap people who are chronically ill with painful diseases.
I don’t know what state you’re in, but here in Oregon, several of our very active, er, activists have written, phoned, & gone in person repeatedly, over at least 3 years, to both the ACLU & the main state org for “defending civil rights.” Every single time, the response has been a variation on, “We do not choose to get involved with this issue at this time.”
Translated to the vernacular, it’s real clear that what they mean is, “We don’t care if every one of you losers drops dead tomorrow.”
Civil Rights my butt; they’re not civil, nor do we have any rights.
My brother is Transgender! He is not physically disabled, but mentally went through hell! This is wrong! I see what you mean, they definitely are more active in making Change! If we come together maybe we can be louder!