June 24, 2020

June 12-18 – A Week of Big Political Changes

Our political environment has been see-sawing sharply lately, as illustrated by the disparate changes dictated by the Department of Health and Human Services (DHHS) on June 12 and the rules handed down by the Supreme Court on June 15-18.  It started by DHHS’ removal of a vital non-discrimination clause that had been added to the Affordable Care Act (ACA) in 2016.

The 2016 version of Section 1557 of the ACA includes language that protects people eligible for ACA coverage from discrimination on the basis of gender identity, sexual orientation and/or language capacity.  It further defined gender identity as “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.”

Last June 12, however, the current administration removed those protections, turning the human rights clock backwards substantially.  The new 2020 version of Section 1557 now declares that “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 also expands its definition of “sex discrimination to include termination of pregnancy,” thus denying coverage for abortion under the ACA.

The public reaction to this reversal of rights – so specifically aimed at women and people who do not self-identify as heterosexual or with their sex assigned at birth – was met with immediate outrage.  The National Association of State and Territorial AIDS (NASTAD)’s  Executive Director Stephen Lee observed that, at a time when “our public health priorities must be to address health disparities by reforming the systems that have exacerbated them, and this rule does just the opposite.”  Similarly, Academy Executive Director Bruce Packett noted that, “There is nothing subtle about the Administration’s move here: it is transparently political while simultaneously allowing for blatant discrimination and health inequities at a moment when addressing the gaps in healthcare access and outcomes should be the focus.”

On June 15, the following Monday, the Supreme Court ruled (6 to 3) to pass a sweeping decision that, in Politico’s words, “protects gay, lesbian and transgender employees from being disciplined, fired or turned down for a job based on their sexual orientation.”

Two of the court’s Republican appointees, Chief Justices Neil Gorsuch and John Roberts, joined the court’s Democratic appointees in passing these anti-discrimination protections. Gorsuch, in his majority opinion, wrote that, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The New York Times reported that, before this decision, “it was legal in more than half of the states to fire workers for being gay, bisexual or transgender.”  The new ruling’s implications for LGBTQ workers across the country is expected to be substantial, including for those working in the health care industry.

A second Supreme Court ruling, passed on June 18 halted the administration’s efforts to dismantle DACA (the Deferred Action for Childhood Arrivals), a program instigated during the Obama administration to protect undocumented young people brought into the US as children. After a 5 to 4 vote, Chief Justice Roberts wrote the majority opinion, contending that sufficient legal justification for ending DACA had not been presented.  This decision will enable DACA enrollees to remain in the US for work and study. Among many other benefits, this makes it safer for DACA participants to access HIV testing and, if needed, treatment.

In his campaign for the presidency, Donald Trump listed the eradication of DACA as one of his top priorities when elected.  His relentless opposition to the program has, understandably, inclined some DACA recipients to minimize their visibility in public records in case DACA was suddenly eradicated.  HIV testing is likely one of the public health services avoided due to this concern.  The Supreme Court’s reassurance that DACA is not in immediate danger, therefore, is likely to encourage DACA recipients to access public health care, including HIV services, as needed.

View the latest Policy Update here.