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Swept Up in the Crackdown: Immigration Enforcement and Gender-Based Violence

A new wave of “tough on crime” policy is taking shape in the U.S., driven by a presidential administration that tirelessly stirs fears of internal and external threats. The full consequences of this new crackdown will not be known for some time. But decades of research on the effects of aggressive law enforcement provide a strong basis for understanding the challenges that lie ahead. In political rhetoric, the law-breaking individual takes center stage. Calls for stiffer penalties focus on actions within the criminal justice system. In reality, however, the fallout from get-tough law enforcement spirals outward, reaching into all corners of targeted individuals’ lives and creating devastating collateral consequences for the people who surround them. In the case of undocumented immigrant victims of gender-based violence, aggressive law enforcement can counteract vital protections and supports.

Past pushes for “tough on crime” reform have already greatly undermined governmental support for individuals who have experienced criminal justice contact.

Consider how criminal justice growth has diminished the scope of the welfare state.

Under a variety of federal and state laws, for example, felony drug convictions can bar individuals from receiving critical forms of public assistance and justify evictions by government housing authorities. Such formal exclusions tend to be based on individuals’ prior run-ins with the law. But in an era of increasing collaboration between welfare and criminal justice systems, the erosion of social protections is just as likely to be based on forward-looking fears: all too often, the act of seeking help can initiate a disastrous process of criminal prosecution. For undocumented immigrant victims, seeking assistance from courts or police can mean exposure to increasingly pervasive immigration enforcement. An undocumented woman seeking a restraining order from an abusive husband may instead find herself in deportation proceedings.

These developments provide crucial background for understanding the intersectional politics of President Trump’s ongoing efforts to yoke immigration to the specter of criminality.

From the outset of his campaign, candidate Trump sought to demonize Mexican immigrants in criminal terms: “They’re bringing drugs. They’re bringing crime. They’re rapists.” In rhetoric and policy, a similar equation of the foreign other and criminal threat has animated the Trump administration’s framing of Muslim immigration in terms of the War on Terror. The result has been a notable surge in nationalistic law enforcement and in the criminalization of immigrants. In May 2017, Immigration and Customs Enforcement (ICE) announced that it had arrested 41,000 people in the first 100 days of the Trump presidency – a nearly 40% increase over the prior year. High-profile raids across the country have put communities of immigrants in fear.

For women who experience domestic violence, the aggressive ICE campaign has worked along two tracks to weaken state protections and increase risk.

Along one track, fears generated by aggressive immigration enforcement undermine the protections extended by the Violence Against Women Act of 1994 (VAWA). The prospect of drawing attention from ICE officials can be terrifying enough to deter even the most desperate claims for protection. And the fears are far from unfounded. In February of this year, ICE authorities detained a woman at an El Paso courthouse immediately after she obtained an order of protection against an abusive ex-boyfriend. In other instances, prosecutors in Texas and Colorado have had to drop domestic violence cases because undocumented witnesses were fearful of appearing in court.

Along a second track, more aggressive immigration enforcement threatens to endanger domestic violence victims through exposure of private information. The Department of Homeland Security (DHS), for example, has created a public online database called the Victim Information Notification Exchange (VINE), which promises to “help victims track the immigration custody status of illegal alien perpetrators of crime.” In their zeal to track “aliens,” however, database managers have exposed the identities and locations of undocumented immigrants who are themselves victims of domestic violence. Protection of identifying information can be vital to the safety of those who have escaped abusive partners. Yet in the name of law enforcement, VINE publicizes information about where individuals are being detained and when they will be released. In the process, it supplies abusers with reliable, up-to-date information about their victims’ whereabouts.

To demonstrate the risk, attorneys have used VINE to locate individuals who have filed VAWA self-petitions or applied for a special class of protected immigration processing through a U or T visa.

These application procedures were made available to undocumented victims of crime and trafficking precisely to shield them from deportation proceeding that might place them at further risk. Thus, as it exposes victims’ whereabouts, VINE operates in a way that undercuts federal protections for crime victims. VAWA and the Victims of Trafficking and Violence Protection Act of 2000 specifically protect U, T, and VAWA applicants from such violations of confidentiality. When the latter Act was passed, it represented a breakthrough victory in addressing the ways immigration laws can effectively trap undocumented women in abusive and exploitative relationships. Today, though the Act remains on the books, an aggressive, criminalized approach to immigration is destabilizing and watering down its protections.

Not surprisingly, undocumented victims have never had an easy or simple relationship to the police.

In a 2000 survey conducted in the Washington D.C. area, 22% of battered immigrant women named fear of immigration authorities as their primary reason for staying with an abusive partner. Subsequent studies have supported this finding: ethnographic research conducted in Phoenix, Arizona revealed widespread fears among domestic violence victims that contacting the police would lead to their own arrest or deportation. Likewise, in a 2014 focus group study of undocumented Latina immigrants, the majority of participants reported that their immigration status held them back from reporting domestic violence.

Such findings underscore the vital role played by policies that visibly secure the safety of undocumented individuals who report crimes, including domestic violence. Indeed, as the Trump administration’s high-profile immigration agenda has run roughshod over these safeguards, advocates and law enforcement have begun to raise alarms about striking drop-offs in crime reporting. In March 2017, Los Angeles Police Chief Charlie Beck announced that sexual assault reports from Latinx residents were down 25 percent from one year earlier, with domestic violence reports down by 10 percent. Beck noted that similar declines had not occurred among other ethnic groups. Houston Chief of Police Art Acevedo reported even greater declines in Latinx reports of sexual assault, 40 percent less overall than last year. Corroborating these reports, similar chilling effects have been observed in other arenas of government assistance. For example, organizations that help families obtain SNAP nutritional benefits report substantial recent drops in the number of immigrant families seeking assistance – and even, in some cases, immigrant parents actively seeking to cancel their food stamps out of fear of deportation.

Government protections tethered to the threat of deportation are not, in the end, really protections at all.

Public policies and institutions rarely work in isolation. Shifts in one inevitably reverberate through others. For this reason, “tough on crime” policy is never just tough on crime. It also imposes serious risks and hardships on victims of crime in need of state protection. As immigration authorities spread out across governmental systems in search of “illegal aliens,” they sow powerful, well-grounded fears that unravel protections for undocumented victims of domestic and sexual violence.

-Victoria Piehowski, PhD Student, University of Minnesota Department of Sociology


Impacts of the Financial CHOICE Act on Transgender People

On June 8, 2017, the House of Representatives passed the Financial CHOICE Act. If signed into law, this Act will roll back numerous regulations set in place by the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act. News reporting about this Act has centered on the government’s role in Wall Street bail-outs and the risks and benefits of regulating how financial advisors invest consumers’ money. Analysis of its gendered and racialized impacts by contrast have been markedly absent. Beyond eliminating regulations for financial institutions, the Financial Choice Act also threatens to dismantle the Consumer Financial Protection Bureau (CFPB), an independent government agency that investigates exploitative financial practices on the behalf of U.S. consumers. If signed into law, the Financial Choice Act would dramatically reduce the resources individuals have to challenge incorrect, outdated or damaging information about them in their credit reports, a change that holds significant consequences for people of color and transgender individuals.

A credit report tells a story about an individual’s trustworthiness as a borrower: the amounts of past, outstanding and revolving debts; all known previous names and addresses; and any history of bankruptcies or felonies. Financial lenders frequently access credit reports to determine a consumer’s eligibility for credit and how much that credit will cost. However, consumer credit reports are increasingly utilized by employers, landlords and insurance companies to assess applicants, a practice that intensifies housing and employment inequality along race and gender lines. Black and Latinx communities are disproportionately impacted by credit report checks due to systemic discriminatory lending practices that charge higher interest rates according to race, leading many to default on debts. A history of delinquent payments, bills sent into debt collection and negative public records signal risk to lenders, employers and landlords and further disenfranchises Black and Latinx communities.

For transgender people, and especially transgender people of color, the practice of evaluating credit reports in housing and employment decisions reproduces inequality due to the way that names are recorded within the reports. Credit reports indefinitely list any name previously or currently associated with a person, which means that transgender people’s credit reports often contain their previous names. The presence of a previous, differently gendered name on a person’s report can alert a potential landlord or employer to their transgender identity. For many, this could mean a retracted job or housing offer. A legal name change is a major step for many transgender people, enabling them to use a name that matches their gender identity and have that name reflected on official identification documents. According to the 2015 U.S. Trans Survey, 25% of respondents who used an ID with a name that did not match their gender presentation experienced verbal harassment and 16% were denied access to services.

In a recent study from the Suffolk University Law School, researchers found significant bias in housing against transgender and gender non-conforming people in the Boston metropolitan area, where gender identity is protected under anti-discrimination law. A resume testing study conducted in D.C., another city that includes gender identity in its anti-discrimination hiring law, found significant bias against transgender job applicants. Just nineteen states explicitly include gender identity within their anti-discrimination laws, meaning that in most states, denying transgender job and housing applicants after discovering their transgender identity is legal. Further, as evident from these two studies, gender identity protection on paper does not necessarily ensure equal access.

According to the 2015 U.S. Trans Survey, transgender people are 3 times more likely to be unemployed than the general U.S. population and nearly 1 in 4 transgender people report that they’ve been evicted or denied housing due to their gender identity. Black transgender people feel the impacts of housing discrimination more intensely: 31% of Black transgender women reported experiencing homelessness due to their gender identity in the past year, compared to 12% of white transgender women. Rental housing applicants are now essentially required to have an established credit history, a practice that requires that people take out debt in order to secure a place to live or furnish a co-signer who has proven to be a responsible debtor. For transgender renters, obtaining an apartment may require either outing themselves as transgender or asking a roommate to be the sole leaser. In either case, transgender renters are put in precarious situations with few legal protections.

The problems that credit reports cause are part of a broader, societal-wide belief that collecting and analyzing more and more data about people will help the financial services industry make better decisions and reduce the risk of lost profits. While only a complete restructuring of credit reporting systems could make these processes fair for marginalized people, there are three clear recommendations that would reduce the harm caused by credit reports in regards to housing and employment.


Demand greater transparency from credit reporting agencies in dispute processes

Millions of people in the U.S. have credit reports that contain significant errors, however the credit reporting agencies do not substantially address disputes from consumers as their clients are the financial institutions who generate credit report data, not individuals. The CFPB helps individuals challenge errors on their credit reports and files suits against credit reporting agencies for illegal and exploitative practices. The Financial Choice Act threatens to eliminate one of the only resources individuals have to challenge incorrect, outdated, and damaging information about them on their credit reports. The Senate should reject the Financial Choice Act’s proposed changes to the CFPB.


Allow previous names to be fully redacted from credit reports

Credit reporting agencies allege that they list previous names associated with a consumer on their credit reports in order to alert the consumer of potential identity theft, a growing problem that affects millions of U.S. residents each year. While transgender name changes can be proven to be legitimate and not evidence of identity theft, credit-reporting agencies are reluctant to fully redact transgender people’s previous names from their reports. This practice harms transgender people more than helps them. While a previous name could be privately retained in order to match a transgender person’s credit history before and after a legal name change, displaying a former name enables discrimination against this marginalized population. To truly protect U.S. consumers, legislators should enable consumers to remove outdated demographic information from their credit reports.


Reduce reliance on credit reports for housing and employment decisions

Credit reports codify racialized and gendered discrimination, making it harder for disenfranchised people to access jobs and housing if their credit reports contain damaging information. Reducing the use of credit checks in these types of decisions would level the playing field for a wide range of marginalized people: people of color, immigrants, transgender people, and low-income people. Future legislation should restrict the use of credit reports in these types of decisions.


— Lars Z. Mackenzie is a PhD candidate in Feminist Studies at the University of Minnesota. You can follow him @larszmac

— Photo by Money Crashers


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Breastfeeding: How do state and federal laws protect employed mothers?

Mothers who work in the formal economy often return to their employer weeks or months after birth, while some are likely still breastfeeding their child. Almost a quarter of new mothers who take unpaid leave from employment after the birth of a child through the Family and Medical Leave Act (FMLA) return to work within two weeks of giving birth, and another 22% return within six weeks. While not all mothers breastfeed for a variety of reasons, the Surgeon General, National Institutes of Health and others have documented the health related benefits for mothers and babies and called for supportive work environments for those that choose to do so.

Prior to the Patient Protection and Affordable Care Act (also known as ObamaCare or ACA), in states without protections for nursing mothers, many women were forced to nurse or express breastmilk in bathroom stalls—if they were even given adequate break time. Women without break time and/or access to a private space often stopped breastfeeding upon return to work. Even with the ACA in place, some women lose their jobs for trying to work and pump (numerous stories demonstrate these and other challenges).  Now, as Congress and the White House again debate healthcare, mothers working in the formal economy have reason to worry.

The ACA provides important protections for nursing mothers; it amended Section 7(r) of the Fair Labor Standards Act so that, effective March 23, 2010, “an employer shall provide—

  1. a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and
  2. a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

If these federal protections are repealed, many nursing mothers in the 26 states without breastfeeding protection laws may lose break time and space to breastfeed at work. Many other states and territories have laws with less generous protections than those included in the ACA.  This patchwork of state laws will provide women lucky enough to live in some states with additional options and rights, but the vast majority of nursing mothers need the ACA’s improved protections.

The ACA breastfeeding provision and state laws have some important distinctions affecting the type of protections nursing mothers receive. It is important to understand the ways that the ACA provides additional benefits currently, but also how stronger state laws might inform improvements of protections in the future.

Mandatory vs. voluntary laws

ACA provisions are mandatory (with exemptions) for employers with 50 or more employees. Some states, such as Georgia, Rhode Island, Tennessee, and Vermont, have voluntary laws, which specify that employers may provide certain accommodations, though they are not required to do so.

Time period

The ACA explicitly states that the nursing break-time provision only applies to mothers for one year after the child’s birth. Many states with similar laws do not specify a time period, while other states extend the period past a year. These more-generous state laws supersede the ACA.

Separate space

The ACA requires employers to provide a separate space, other than a bathroom, that is shielded from view, for nursing mothers to express breast milk. Most state laws include a similar provision but some do not make the provision mandatory. For example, California’s law, passed in 2001, does not include any language regarding a separate space. Some states, such as Minnesota, are more generous than the ACA, and require the private space to have access to an electrical outlet. Other states allow employers to designate themselves as “infant-friendly” if they meet requirements such as access to a sink and refrigerator.

Exempt employers

Similar to other provisions within the Fair Labor Standards Act (FLSA), the ACA’s nursing mother’s provision does not apply to employers with fewer than 50 employees. State laws generally do not specify an employer size or they apply the law to all employers with one or more employees. A small number of states have more expansive exemptions, such as Indiana, whose law only applies to state and local governments as employers, or Oregon, whose law only applies to employers with 25 or more employees.

Exempt employees

Most state and federal laws reference definitions of “employee” in other statutes, which may leave out sectors of the economy (commonly agricultural and domestic workers) or certain types of employees under a covered employer.  Most notably, the definition of ‘employee’ under the FLSA (which is used under the ACA) does not include most salaried workers. State laws may have broader definitions of ‘employee,’ extending benefits to more working mothers.

Enforcement mechanisms

Enforcement mechanisms vary but are generally inadequate at the federal and state levels. It is difficult for workers to access their rights if an employer is not complying with the law. In the federal process, employees can file a complaint with the U.S. Department of Labor’s Wage and Hour Division if their employer is violating the FLSA. But, this enforcement mechanism has limited utility, as the penalty is generally to compensate an employee for lost wages, of which there may be none, because nursing break times are not compensated.[1] In addition, the time frame under which enforcement is triggered is critical. Immediate action is needed in the case of a worker-employer disagreement related to nursing, as an interruption of nursing for even a couple of days can severely compromise or end the possibility of nursing and potentially cause health issues for the mother. In Minnesota, for example, the Minnesota Department of Labor & Industry must respond to a complaint within 72 hours to minimize disruptions that could compromise a mother’s ability to continue nursing.

There are some areas in which federal and state laws are significantly similar. 

Neither the ACA provisions nor any additional state laws related to providing break time for nursing mothers require employers to compensate employees for nursing break time.

This provision is likely intended to lessen the financial burden for employers, but it overlooks a large barrier for low-income nursing mothers: many cannot afford to take unpaid breaks. The ACA and most state laws also include a potentially large loophole in the form of an undue hardship clause. Its vague wording allows employers to assert that they cannot provide nursing accommodations because it would cause them significant difficulty or expense.

As Congress and the White House debate repeal-and-replace proposals, nursing provisions are rarely a topic of discussion.

However, without them, nursing mothers will once again be at the mercy of a patchwork of state laws (which, for the most part, fall short of one or both of the ACA requirements for time and private space).  Given the significant and proven health benefits of breastfeeding for both babies and mothers—benefits recognized by the federal government—a lack of robust, national protections is a failure for those mothers who choose to breastfeed.

 — Diana Boesch, Masters of Public Policy Student, Humphrey School of Public Affairs, University of Minnesota

— Debra Fitzpatrick, Co-director, Center on Women, Gender & Public Policy, Humphrey School of Public Affairs, University if Minnesota

— Photo by the US Department of Labor

Poor Prospects for Students and Teachers after the First 100 Days

The first 100 days of the Trump Administration were filled with curious incidents and whiplash-inducing statements and retractions regarding education. As the school year winds down, there is still uncertainty—as well as evidence that many programs and supports for students are under threat.

Our first offerings on this page raised concerns about school discipline policy, Title IX enforcement, and the influence of conservative groups on Secretary of Education Betsy DeVos’s approach to curriculum and school choice.  Since then, evidence has mounted that the Trump Administration will not become more “moderate” on policies that disproportionately impact gender, ability, and racial equity in education, from kindergarten to graduate school.


K-12: Trumpcare and Students with Disabilities

Trump’s campaign promise to kill Obamacare may not have seemed like an education issue, but the version of the American Health Care Act (AHCA) passed in the House would cut the Medicaid funds that schools depend on to pay professionals involved in health screenings and support services for students with disabilities. In a survey of over 1,000 schools in 42 states, conducted by the Superintendents Association of America, 68% of respondents said they use Medicaid funds for these services. And according to researchers at Georgetown University, the proposed cuts and block grant mechanisms in the House plan would mean states could choose not to provide screenings for “hearing and vision problems, developmental delays and disabilities such as autism.”

Potential drops in screenings and support services would have significant gendered effects.

Boys are twice as likely as girls to be diagnosed with learning disabilities, so the AHCA would not only disproportionately harm boys (who are more likely to be receiving services), but also stymie attempts at more effective screening of girls, who may be under-diagnosed due to differences in expression of symptoms and behaviors.

According to research by the U.S. Department of Health & Human Services, teen girls who are not diagnosed or screened are more likely to become pregnant, drop out of school, and experience poverty.  The potential impact of the AHCA on Medicaid funds for schools, paired with DeVos’s lack of concern about the Individuals with Disabilities Act and Title IX, would be to slash already-inadequate disability services and increase diagnostic gender gaps.


College Education Costs: HBCUs, Student Loans, & Loan Forgiveness

Though Trump’s campaign promised to make college more affordable, all of the policy proposals coming from the Executive Branch and Congress promote private lending institutions and cuts to programs that help low income students afford college (including Pell Grants). Low-income students of any gender—particularly students of color—will pay steeper prices for their education, and some will lose access entirely. That is, those who are already disadvantaged in education will become more so. A great many will be, as it were, “left behind.”


In February, Republicans lauded President Trump for hosting presidents of Historically Black Colleges & Universities (HBCUs) in the Oval Office for the signing of an Executive Order to “strengthen the capacity of HBCUs to provide the highest-quality education.” DeVos attracted condemnation when her statement on the Order praised HBCUs as pioneers in “school choice” rather than a necessity born of the Jim Crow segregation that allowed other colleges to exclude Black students for from their campuses. And what did the attention the White House paid to HBCUs amount to in terms of policy?  It turns out, the Executive Order was purely rhetorical; it did nothing to secure any funding or other support for HBCUs.

Instead, budget proposals from the Trump Administration and the GOP-led House suggest a not-so-positive relationship between the administration’s view of public education funds and the mission and impact of HBCUs on Black educational gains.  HBCUs service and graduate more low-income students than historically white colleges and universities that admit similar types of students, and the Pell Grant program is a key component in the financial aid HBCUs can offer. Whether they attend Historically White Colleges and Universities (HWCUs) or HBCUs, 46% of Black students receive Pell Grants and represent almost 25% of all Pell Grant recipients.

Women’s colleges also have been among the most successful in recruiting and graduating Pell Grant eligible students, providing low-income women and women returning to education with robust educational opportunities.

In the past decade, GOP lawmakers have been hostile to expanding Pell Grants, favoring more expensive private student loans that have not been shown to be more effective in helping students complete their degrees on time. Moreover, DeVos signed an April order to revoke the Obama Administration’s reforms to private loan guidelines meant to protect students from unfair and expensive practices. A former Deputy Treasury Secretary said the reversal would “place the welfare of loan contractors above those of student debtors.”


Loan Forgiveness for Teachers & Social Workers

More recently, the administration suggested it would eliminate loan forgiveness programs for graduates who go to work in the public sector. These programs are widely used by students going into teaching and social work, two professions that are overwhelmingly female (at 76% of public school teachers and over 80% of social workers) and have low starting salaries. Ending loan forgiveness programs would remove a key incentive for students considering teaching and social work and disproportionately impact the incomes of women in these professions.

It could also worsen teacher deficits that already threaten to become serious shortages in the next decade. Department of Education data shows a steady decline in graduates from teacher preparation programs, and some states, like Nevada, have described estimated teacher shortages as “horrific.” In 2015-16, over 40 states reported shortages in special education and math teachers, and over 30 reported needing more English teachers who can work with English Language Learning (ELL) programs.

If the Trump Administration eliminates loan forgiveness for teachers and social workers, how will schools fill openings left by retirees?  How would a shortage in social workers impact schools’ ability to provide services to students with disabilities, let alone implement strategies for implementing less-punitive, more restorative school discipline processes?


Are there any possible silver linings?

Though Secretary DeVos has stocked her department with staffers with ties to for-profit colleges, in April the Trump Administration gave surprising support to an Obama-era policy that protects students at those schools from predatory loan practices.

And, if the widespread public pushback against the AHCA continues, perhaps the Senate version will be less savage in cuts to the Medicaid funds schools depend on for student well-being and staff support. Still, the all-male composition of the Senate committee does not bode well for their attention to gender equity, and few hold out hope that the next version of the AHCA will bring us any closer to closing gender and income gaps in disability services and screening for grade school students.


Catherine Squires, Professor of Communication Studies, University of Minnesota

— Photo by HendersonStateU

Gender transition healthcare services under the Trump administration

With the House of Representatives’ recent passage of the American Healthcare Act (AHCA), we have begun to see the influence of Republican-controlled government on the U.S. healthcare system. Even though the bill is not yet law, those who identify as transgender or whose gender identity does not align with their assigned sex are already seeing vital healthcare protections dropped as the political environment shifts. Still, in this time of fear and uncertainty, there are a few examples of institutions increasing access for transgender folks to receive the healthcare they need.

What’s the law?

Historically, the U.S. transgender community has faced many barriers to accessing healthcare, including lack of health insurance. The Affordable Care Act (“ObamaCare” or the ACA) put in place provisions to protect patients from discriminatory practices based on sex or gender identity by healthcare insurance companies and providers; these measures are enforced by the U.S. Department of Health and Human Services (DHHS).

For instance, under the ACA, gender dysphoria, a condition specific to the transgender community, cannot be considered a disqualifying pre-existing condition.

As a direct result of the patient protection provisions of the ACA, a June 2014 Department of Health and Human Services (DDHS) communication to local Medicare Administrative Contractors invalidated Section 140.3 of the National Coverage Determinations Manual, which specifically denied any coverage for transsexual surgery. This action allowed local contractors to make decisions on coverage requests for gender reassignment surgery on a case-by-case basis, though it stopped short of creating a National Coverage Determination (NCD) for this therapy. Another DHHS directive, effective in May 2016, which aimed to clarify and codify the protections of the ACA’s Section 1557, stated that entities covered under Medicare and the ACA cannot “deny or limit coverage, deny or limit coverage of a claim, or impose additional cost sharing or other limitations or restrictions on coverage, for specific health services related to gender transition if such denial, limitation, or restriction results in discrimination against a transgender individual.”

While the regulation does not require insurers to cover gender transition services, it does require coverage for transgender-specific healthcare be determined based on the “same neutral, nondiscriminatory criteria that [the entity] uses for other conditions”.

Since President Trump’s inauguration in January 2017, there has been a strong push to repeal the ACA, including its anti-discriminatory measures. A recent ruling by a Texas judge specifically placed a preliminary injunction on Section 1557, stopping the DHHS from enforcing the ACA provisions against discrimination based on gender identity nationwide. The judge’s justification, issued when Trump was the president-elect, claimed that the federal government had overstepped the definition of sex by including gender identity and that Section 1557 potentially violated the religious freedom of healthcare providers.

Recent developments in discriminatory practices…

The injunction against Section 1557 of the ACA has, in the span of less than six months, begun to allow for discrimination against the transgender community. Republican lawmakers in Minnesota introduced a House bill on February 13th, 2017 to allow health insurance companies to deny coverage to clients desiring to go through gender reassignment surgeries. In fact, House File 1183 (HF1183) affects a broad range of care, as it applies to all “health services related to gender transition”. The bill circumvents the ACA’s protections by stating it would only apply to health plans if there are no federal laws protecting against transgender discrimination, meaning after a repeal of the ACA. The bill has advanced to the Minnesota House’s Health and Human Services Reform Committee.

In Wisconsin, the state legislature’s Group Insurance Board decided to overturn their July 2016 decision to add coverage for state employees seeking gender reassignment surgery. According to the Board, the stoppage is a direct response to the December 2016 injunction on Section 1557. A report has estimated the cost of such coverage would have added between $100,000 and $250,000 per year to a $1.5 billion state healthcare system for employees and dependents. drive for the change was likely less about fiscal responsibility than to social issues related to transphobia.

And on January 24th, 2017, the University of Arkansas stated it would no longer cover services related to gender identity under its health insurance after March 6th. The University had only granted access to transgender-specific services in January 2017 in order to be in compliance with ACA. It cited the Section 1557 injunction and the potential repeal of the ACA in suspending a final decision until further clarification is given regarding the ACA’s regulations.

… Yet some are increasing access to transgender health services

Interestingly, some recent initiatives across the country have increased the availability of transgender-specific services. A package of New Jersey bills set in motion in the beginning of February could prevent health insurance companies from discriminating against residents of the state based on gender identity. The bills were approved by the Assembly’s Human Services Committee and will be voted on shortly by the New Jersey Assembly and Senate. At the University of Nebraska-Lincoln, a Transgender Care Clinic opened on February 1st. This clinic offers transition services to students, paid through the student insurance health plan, including hormone therapy, postoperative follow-up, and gynecologic care. And later this year, Johns Hopkins Medicine in Maryland will launch its Center for Transgender Health to provide gender transition services including gender reassignment surgery. These examples of members of the healthcare community responding to the needs of their transgender patients demonstrates the progress that has been made in the fight against transgender health inequalities.

What comes next?

The transgender population is in a precarious position in so many ways; healthcare is no different, though the ACA had worked to codify non-discrimination. Without the ACA’s provisions—particularly Section 1557—explicitly in place, the first half of 2017 has seen swift movements to undermine the ability of a group of people to receive care, even though there have been some more local positive advancements aimed at expanding access to transgender healthcare in Nebraska, New Jersey, and Maryland since the Texas court’s injunction. Barring federal protection against discrimination toward transgender people in healthcare, state-level anti-transgender actors can build on the injunction of Section 1557 and encode healthcare discrimination practices into state law. The continued threat of repeal or “repair” of the ACA with the AHCA demonstrates how discrimination against many groups could become a national law. In fact, access to affordable, transgender-specific health services is not only under threat, it’s under direct attack.

— Sajya Singh, Undergraduate Student, Department of Genetics, Cell Biology, and Development at the University of Minnesota

— This piece was written as part of the course “Gender and the Politics of Health” taught by Debra DeBruin, Associate Professor, Center for Bioethics, Department of Medicine and College of Liberal Arts Department of Philosophy at the University of Minnesota


— Photo by Ted Eytan