content warning: transphobia
Gavin Grimm had a speech written down, but he didn’t bother to look at it. When he took the stand before the Gloucester County School Board in Virginia to deliver testimony for a disputed school bathroom policy, he realized there were some basic facts he needed to establish first. Grimm, a recently transitioned male student, had been referred to exclusively as a girl by all other past speakers in the debate over allowing trans students the use of school facilities that corresponded to their gender identity.
“I cannot use the women’s bathroom, quite frankly, because I am not a girl,” Grimm told the school board in 2014. “I understand that it might be hard for some of you to look past biology and XY and XX [chromosomes], but we know scientifically that this is not a choice. All I want to do is be a normal child and use the restroom in peace.”
Grimm had begun to transition at the start of his sophomore year at Gloucester High School in Virginia. He notified the administration, and for the first two months he used the boy’s bathroom, like every other male student. Then, as news spread, parents began to complain, and the school board voted six to one—despite Grimm’s compelling testimony—to deny him the right to use the men’s bathroom. The administration attempted to accommodate him by designating a single bathroom as unisex. But, as Grimm made clear, this was not enough.
“It’s an exclusion,” Grimm told CNN last week. “It’s saying that I’m not fit for being in communal spaces with my peers—that I’m different from them, not deserving of the same opportunities my peers get. I don’t pose a threat or any kind of harm to people using the correct bathroom.”
Grimm sued the school district and won his case—a legal challenge backed by the American Civil Liberties Union (ACLU)—in the 4th Circuit Court of Appeals in April of last year. This fall, the Supreme Court granted Grimm a writ of certiorari, committing to hear his case in the spring of 2017. The core of the case rested upon whether gender identity should be interpreted to be part of Title IX regulations, which are designed to prevent sex-based discrimination at schools and colleges—specifically, the question of whether transgender students should be allowed to use school facilities that correspond to their gender identity. Despite its promise, last week on March 6th, the Supreme Court issued a terse one-sentence statement refusing to hear the case, effectively vacating the prior ruling from the lower court. Because the appellate court based its ruling on Title IX guidance from the Obama administration (a position now void under Trump), the Supreme Court asked for the case to be retried. The Grimm case, widely expected to be a landmark civil rights case, had lost its legal momentum.
“The underlying principle that discrimination against transgender individuals is a form of discrimination on the basis of sex has been widely accepted in the lower courts for years,” noted ACLU lawyer Joshua Block in a letter to the Supreme Court last week, expressing regret that the matter would not be decided once and for all at the nation’s highest judicial level.
The Obama administration had previously issued a Dear Colleague letter—a notice clarifying the administration’s official policy in educational matters—last May, warning school districts that their refusal to allow transgender students access to proper facilities would lead to a loss of federal funding. On February 22 of this year, however, Betsy DeVos and the Department of Education, pressured heavily by Attorney General Jeff Sessions, issued their own letter, rescinding the official White House stance on the issue and leaving schools to decide who could access a given facility. This effectively granted each district what amounted to an unchecked level of control over students' bodies.
“It’s a states’ rights issue,” White House press secretary Sean Spicer told reporters at a recent press conference, the Trump administration’s go-to justification for civil rights violations. “If a state wants to pass a law or a rule, that’s their right. But it shouldn’t be the federal government getting in the way of this.”
In reality, as numerous activists have pointed out in past weeks, the Trump administration’s agenda is not so much about states' rights but about the exclusion of trans people from public spaces.
“When trans students are told that they cannot use public facilities, it doesn’t only block them from the toilet—it also blocks them from public life,” trans activist Janet Mock wrote in the New York Times on February 23. “It tells them with every sneer, every blocked door, that we do not want to see them, that they should go hide and that ultimately they do not belong.”
The fundamental issue that Mock describes—government-sanctioned discrimination and erasure of identity—has extended to the healthcare system as well, where the trans community must now also face the rollback of rights preventing stigmatization in yet another aspect of their lives. On March 6, the same day as the Supreme Court’s refusal to hear Grimm’s case, the GOP announced its replacement for the Affordable Care Act. Among other major changes, the new plan would defund Planned Parenthood, which heavily relies on the $500 million in federal money it receives each year. Along with limiting access to abortions and other forms of care, defunding Planned Parenthood could leave thousands of transgender people unable to receive coverage for gender-confirmation surgery and hormone therapy.
The ACA rollback might offer more consequences. In 2015, the National Center for Transgender Equality reported that a third of transgender Americans had delayed or not sought care because of past negative experiences in the healthcare system. The creation of the ACA, however, proved revolutionary for the trans community by beginning to destigmatize access to the healthcare system, which, like public bathrooms, is an essential aspect of a person’s everyday life.
In May 2016, the Department of Health and Human Services issued a regulation clarifying that section 1557 of the ACA, which prevented discrimination based on sex, included transgender patients in its scope. Without the ACA’s federal oversight, private insurance companies have no incentive to include trans-specific healthcare needs in their coverage. The trans community hasn’t found support at the state level either—31 states lack any explicit policies against transgender discrimination in either private insurance or Medicaid, and only 14 states have explicit anti-discrimination measures for both types of insurance. And not all federal health insurance programs were included in the 2016 regulation: national programs that do not fall under the authority of the ACA, like the Veteran’s Agency and the Defense Department’s TRICARE system, also lack anti-discrimination policies.
In many regions across the country, trans people, especially those seeking hormone therapy, may have to drive for hundreds of miles or across state lines to find a clinic that can accommodate their health needs. While as of last year, according to Slate, Planned Parenthood offered at least 26 different locations for hormone therapy across the country, there are still substantial numbers of trans-identifying individuals in the Midwest and South whose needs may not be met.
“For some people, [Planned Parenthood] is the only place within a reasonable distance that they can get health care or transition health care,” Jay Wu, a spokesperson for the National Center of Transgender Equality, told the Independent. “A lot of people face discrimination in undergoing routine healthcare—they can be harassed or even denied service because they’re trans. Seeking care that is traditionally seen as gendered can be difficult if you’re trans, like if you need to get a pap smear and you’re not a woman. Outside of Planned Parenthood, it’s not always possible to get that in a respectful or sensitive way.”
The repercussions of private healthcare have already begun to negatively impact the trans community. Last month, Wisconsin blocked a prior state regulation forcing insurance companies to include gender confirmation surgery in their coverage. Similarly, the University of Arkansas suspended trans health coverage for its employees, even though such coverage had been mandated by the Obama administration at the beginning of 2017. This trend could well become the norm, as the Medicaid expansion that proved crucial for enabling lower income people—those earning under $17,000 in the 31 states that participated in the expansion—will be cut by 2020 under the GOP’s new plan. This same group made up the vast majority of Planned Parenthood clients as well, with 78 percent of patients in 2015 falling into this income bracket. Taking away both Medicaid and Planned Parenthood—while harming low-income families across the board—will have a particularly acute effect on trans and gender nonconforming people, who often find themselves caught in the intersection of poverty and discrimination.
As a 2015 report by the Movement Advancement Project and Center for American Progress underscores, there is strong evidence to indicate that transgender people are at an economic disadvantage in the US. The study found that trans people are four times more likely to have an annual income below $10,000 than cisgender people. This rises to six times as likely for trans people of color. The roots of this disparity are twofold: legal discrimination in healthcare and employment limit their ability to participate in the workplace, while unsafe environments in schools can limit trans people’s access to education.
In this sense, there is a circular nature to the transphobia put forward by the Trump administration. By denying the right for students like Gavin Grimm to use the proper bathroom, the government diminishes the quality of their education and their ability to learn. Likewise, as LGBTQ+ activists have highlighted, when a trans person feels uncomfortable participating in basic functions of everyday life, like using the bathroom or going to a doctor’s appointment, their participation in the public sphere becomes threatened and stigmatized. All of these factors contributes to and exacerbates the burden of marginalization that weighs down upon members of the trans community.
“To have those rights rescinded feels like a slap in the face, it feels like not acknowledging the humanity of who trans people are,” actress Laverne Cox told Mic last week. “It sends a message to trans kids that they are less than. And the second you start feeling less than, you internalize shame, you internalize all the things that keep you from living your best life.”
The discriminatory messages sent through the policies of the Trump administration—whether on the level of bathrooms or healthcare—create an environment that encourages systemic violence against the trans community.
In one week in February of this year alone, four transgender African American women were murdered, of the total seven transgender people killed in 2017 so far, according to the New York City Anti-Violence Project.
Moreover, a study from the Williams Institute at the UCLA School of Law underscores the harsh consequences that arise from the public stigmatization of trans identity, reporting that forty percent of trans people attempt suicide at some point in their lives. This risk, the report states, increased significantly when trans folks felt that they didn't "pass" for the gender they identify as.
The repeal of the ACA also threatens those living with HIV/AIDS. Because of government failures to provide healthcare resources and policy changes necessary to fully address the issue, trans people are more likely to test positive for HIV. According to the Center for Disease Control, nearly 60 percent of African American trans woman contracted HIV at some point in their lives. Whereas before the ACA, a quarter of people with HIV had no health insurance whatsoever, Obama’s Medicaid expansion provided the greatest source of insurance coverage for those suffering from HIV, with 42 percent of people in this group now covered by Medicaid. By contrast, the Kaiser Foundation estimates that only 15 percent of people with HIV currently lack coverage.
Prior to the ACA, Medicaid had only been open to pregnant women and those with disabilities, meaning that someone who contracted HIV could only receive Medicaid treatment after it reached advanced stages. The reduction of Medicaid will mean that, once again, low-income people at risk of contracting HIV will have to wait until it’s too late before they can receive subsidized care.
"The evidence is iron-clad that when people with HIV are treated and their viral load is suppressed, their likelihood of transmitting HIV goes down to almost zero," John Peller of the AIDS Foundation of Chicago told Reuters. "So, any kind of interruption in care is going to result in more cases of HIV."
Trump and his allies appear to be facing significant pushback to their so-called reforms, not only from liberals but from those within their own party. A gay GOP group, the Log Cabin Republicans, published an open letter to Betsy DeVos and Jeff Sessions on March 3rd citing “deep concerns” over the decision to validate transphobia in the education system. The letter implored the administration to sustain the “positive elements” of Obama's legacy.
“Remember nothing is ever wasted,” Chase Strangio, an ACLU lawyer working on Grimm’s case, wrote on Twitter this week. “Our work here, in our lives, in our histories, moves us towards justice.”
Across the country, activists, student groups, and politicians have rallied—Austin, Texas, the University of Arkansas, and Trump Tower in New York City have all been the site of recent protest. LGBTQ+ organizations like Lambda Legal Services have promised to sue “any school district that discriminates against trans students,” while others like GLSEN have created policy toolkits to fight for change on the state and federal level.
“We’re doing everything we can to resist these rollbacks,” says Wu, of the National Center for Transgender Equality. “We’re doing everything we can to make sure that folks in the trans community know that. We’re refusing to give up the idea that we cannot have forward progress during this administration and that we cannot make progress for rights of trans people in the next four years.”
JACK BROOK B’19 urges you to make a donation to Lambda Legal Services at lambdalegal.org.