Let's Be Clear: Transgender Discrimination IS Sex Discrimination

Recently, the ACLU and numerous allied coalition partners wrote to the U.S. Department of Health and Human Services (HHS) to request that HHS issue guidance to make clear that the Patient Protection and Affordable Care Act’s prohibition on sex discrimination applies to discrimination based on gender identity and sex stereotypes.  The fact that someone is transgender or does not conform to stereotypical notions of masculinity and femininity should never be a barrier to accessing health care services.

Discrimination in this area could include everything from a refusal to admit or treat an individual based on their gender identity to a requirement that those who are transgender or gender-nonconforming undergo intrusive and medically unnecessary examinations as a condition of receiving treatment.

In response to the LGBT coalition letter, HHS confirmed that this was in fact their view, while stopping short of issuing additional formal guidance at this time (though they have said they plan to do so in the future).  The implications for this are, as our colleagues at the National Center for Transgender Equality point out, that LGBT patients facing discrimination based on either their gender identity or a nonconformity with sex stereotypes at hospitals, clinics, doctors’ offices, or other medical providers that accept Medicare or Medicaid (as well as other forms of federal funding) can file complaints of discrimination with the Office for Civil Rights at HHS and expect to have them investigated and taken seriously.  This is critically important for LGBT patients and families who are uniquely vulnerable to discrimination and mistreatment in health care settings. 

A first of its kind 2010 survey from Lambda Legal found that 56 percent of LGB and 70 percent of transgender and gender-nonconforming respondents reported experiencing one or more of the following in a health care setting: being refused needed care; health care professionals refusing to touch them or using excessive precautions; health care professionals using harsh or abusive language; being blamed for their health status; or health care professionals being physically rough or abusive.

This latest positive development from HHS is in keeping with an ever-expanding number of court decisions and other interpretations making clear that transgender discrimination is sex discrimination.

Most recently, the EEOC issued a landmark decision in April that, following common sense and a growing body of case law, declared that workplace discrimination against transgender people violates the federal ban on sex discrimination in employment.  The EEOC said this is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another (as was the case with former ACLU client Diane Schroer), or because the employer simply does not like that the person is identifying as transgender.  In Schroer v. Library of Congress, a federal district judge ruled that the Library of Congress illegally discriminated against Schroer in a groundbreaking decision that found that discriminating against someone for changing genders is a prohibited form of sex discrimination. 

We at the ACLU will continue to push for clarity that bans on sex discrimination protect those who are transgender.   Let’s celebrate the fact that it is becoming increasingly clear that discrimination against transgender individuals – be it in the workplace or in a health care setting – is sex discrimination.  But let’s also continue to advocate for more such common sense interpretations.  And let’s continue to push for passage of explicit bans on discrimination against individuals based on their sexual orientation or gender identity.

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So are you telling me that a man who thinks he is a woman should be able to see a gynecologist just because he thinks he is a woman? This is what it sounds like to me. I doubt that anyone who has serious medical issues is ever refused services. Perhaps the man seeking medical care from a gynecologist should be referred to a psychologist instead?


Are you guys crazy? You have a bunch of people running around getting sex changes and you call it sexual discrimination if people don't like them? This is amazing. Why can't white conservative heterosexuals have some protection? Silly liberals want everyone to be tolerant but that doesn't seem to be extended to non-liberals. We have a voice too. You stupid ass clowns


Dear Anonymous
“Why can't white conservative heterosexuals have some protection?”

You are protected.
If someone is discriminating against you because you are white; that is discrimination based on race.
If someone is discriminating against you because you are heterosexual; that is discrimination based on sex.

Victoria "Kaleb...

To the first anon, no, that isn't what the article is saying. What it's saying is that a trans woman shouldn't be refused service by a doctor, regardless of what they're at the doctor for. If she is there to get her prostate checked she shouldn't be refused service just because she's presenting as a woman just as I shouldn't be refused service at the gynecologist for presenting as a man.

To the second anon... No, we aren't crazy. We're individuals just like you and we deserve the same rights as you. Yes, it is sexual discrimination if some one is fired or refused service because of that. It doesn't matter if you don't like them or not, and it doesn't matter if the employers or service providers like them or not. It IS sexual discrimination to refuse service or fire someone for either fully transitioning or presenting themselves as the gender they are most comfortable.

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