In LGBT activists’ narrow crusade to force the notion that gender identity is biologically the same as sex, they heavily restrict what it means to be transgender.
A Federal judge has blocked the Trump administration's order to repeal Section 1557 of the ACA, which a previous federal judge blocked in 2016, meaning that it had never actually gone into effect.
Section 1557 of the ACA, per the HHS, "[R]edefined sex discrimination to include termination of pregnancy and gender identity, which it defined as one's internal sense of gender, which may be male, female, neither, or a combination of male and female." On December 31st 2016, a federal court determined this attempt to redefine sex discrimination, as defined by Title IX of the Civil Rights Act of 1964, was contrary to civil rights law and blocked the rule. But all of that has changed now.
US District Court Judge Frederic Block in Brooklyn blocked the ruling and as reported, "[I]ndicated he thought the Trump administration's so-called transgender rule is invalid in light of the Supreme Court ruling in June on a case involving similar issues in the context of job discrimination."
Block argued, "When the Supreme Court announces a major decision, it seems a sensible thing to pause and reflect on the decision's impact," Block wrote in his order, suggesting the agency may want to reconsider. "Since HHS has been unwilling to take that path voluntarily, the court now imposes it."
The temporary block was the result of a lawsuit filed by the Human Rights Campaign who celebrated on their website, "Today's victory is a step in the right direction, and we at the Human Rights Campaign will continue to fight the administration"s attempts to dehumanize and stigmatize the LGBTQ community. This rule should be permanently tossed out and we will fight in court to ensure that it is."
As summarized by media reports, "The HHS rule sought to overturn Obama-era sex discrimination protections for transgender people in health care. Similar to the underlying issues in the job discrimination case before the Supreme Court, the health care rule rests on the idea that sex is determined by biology. The Obama-era version relied on a broader understanding shaped by a person’s inner sense of being male, female, neither or a combination."
In this regard, the leftwing perspective is correct. The Supreme Court ruling in Bostock v. Clayton County Georgia argued that sexual orientation and gender identity are assumed under the term "sex" in the Civil Rights Act of 1964. While the case specifically addressed discrimination in employment, focusing on issues such as pronoun usage, gender expression, dress codes and other workplace concerns regarding LGBT employees, the reasoning can be applied to all issues of discrimination based on sex. Section 1557 makes the same argument, and in practice was designed to require medical care facilities to provide the same care to a transgender person they would a person of the same identified sex.
In LGBT activists' narrow crusade to force the notion that gender identity is biologically the same as sex, they heavily restrict what it means to be transgender. They also unintentionally create obstacles to the goals they sought in the first place regarding medical treatment. For example, The National Center for Transgender Equality provides a comprehensive list of what is considered transgender rights in healthcare. While much of the list involves highly unlikely scenarios of discrimination or abuse towards trans patients, two areas are relevant to this argument.
The first is under health insurance coverage where the organization states, "[A]n insurance company can't automatically exclude a specific type of procedure if it covers that procedure for non-transgender people. For example, if a plan covers breast reconstruction for cancer treatment, or hormones to treat post-menopause symptoms, it cannot exclude these procedures to treat gender dysphoria."
The second is under health care facilities arguing it is illegal for them to, "[Refuse] to provide you services that they provide to other patients because you are transgender." The argument has long been that if a Catholic hospital performs hysterectomies at all, they cannot deny an elective hysterectomy for a transgender man upon request, even if that request violates the faith standards of that hospital.
But by arguing that gender identity is indistinguishable, legally, from sex, they limit themselves to the medical standards for that sex. All transgender-related surgery is elective in nature as it does not resolve a physical illness or condition, only a psychological one.
Elective surgery such as breast augmentation, elective hysterectomy and facial changes are not automatically covered under health insurance or required to be performed by medical facilities upon request simply because a cisgender woman wishes it, regardless of mental health concerns.
If the standard is that transgender women must be treated identically to cisgender women, then they cannot demand specific exceptions for "transgender" medical treatment only viewed as medically necessary for transgender people.
Just as employment discrimination was argued based on cases where transgender women were discriminated against for dressing as women in workplaces with sex-specific dress codes, today a transwoman is still restricted by the requirements for women in that workplace. She cannot arbitrarily dress however she feels in whatever gender expression she wishes simply because she is transgender. The same goes for medical treatment.
As in many areas, the LGBT fight to win by any means necessary has unforeseen consequences, for their own cause and for the rest of society. Bostock v. Clayton County Georgia was an earthquake legal event and the tidal wave has not yet hit. Everything from high school girl sports teams to public restrooms to whether women have a right to cosmetic surgery is now up in the air. No one, including LGBT activists, have any idea how all of it will settle once it falls.
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