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Re-Emerging Nationality and Gender Preferences in Trump’s Refugee Policy Rollback

The Women, Peace and Security Agenda Under the Trump Administration: Undercutting Advances with a Return to Masculine Militarism

Too Costly? The Fight for Trans Health Care in the Courts and Legislature

by Lars Z. Mackenzie
September 26, 2017

On July 26, 2017, President Trump caused a national uproar with three tweets announcing a ban on transgender military service. Trump declared, “Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.” Responses ranged from displays of trans patriotism to analyses of the true costs of trans health care. The Washington Post, for its part, reported that the U.S. military spends five times as much on Viagra than it would on transition-related procedures. Policies that seek to restrict the use of federal funds for trans health care using this “tremendous medical cost” rhetoric send a broader message of disapproval for medical procedures that many conservatives deem to be morally questionable.

While trans health care costs have not been proven to be particularly financially burdensome to insurance providers, any money spent on gender transition is generally considered an inappropriate use of federal funds.

In this way, restrictions on publicly-funded trans health care mirror another policy, the 1976 Hyde Amendment, which restricts access to abortions for public health insurance recipients. The justifications come in similar packages: tax-payers should not foot the bill for morally questionable medical procedures.

Arguments that trans health care is too expensive and burdensome have long circulated in legislative debates. In Minnesota, lawmakers have grappled with these questions since the 1970s, and their experiences can help us anticipate what we’ll see if the promised Medicaid and Medicare cuts materialize and states gain greater autonomy in restricting reproductive and trans health care access for low-income Americans.

 

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On November 14, 2016, the U.S. District Court in Minnesota overturned a ban on transition-related surgical procedures for Medicaid recipients. The court ruled in favor of OutFront MN, a statewide LGBT rights organization working on behalf of a 63-year-old trans man from St. Paul, granting Minnesotans who use Medical Assistance (MA), the state’s Medicaid program, access to gender affirmation surgeries.

Hailed as a victory, the ruling actually reverts Minnesota law back to a 1977 ruling granting broad MA access to transition care (and making Minnesota the first state to cover gender affirmation surgeries under its Medicaid program). However, since 1995, the Minnesota legislature has chipped away at that once-progressive policy. Let’s take a look.

Beginning in 1968, the University of Minnesota’s Medical School performed state-funded surgeries on transsexual adults, free of charge. By the mid-1970s, the funding for this program had run out. A 45-year-old trans woman (referred to as “Jane Doe”) had received hormone therapy, a prerequisite for surgery, through the University clinic, but was unable to undergo her surgery before the program ended. In 1977, Doe petitioned the Hennepin County Department of Public Welfare (DPW) to cover her surgeries as a MA-covered individual. Her request was approved by an officer for the county, but later reversed by the statewide DPW. The state argued that because she could not “prove that the requested surgery would allow him [sic] to become self-supporting,” the procedure would not be covered by MA (Doe v.  State of MN 1977). The Supreme Court of Minnesota reversed this decision, citing that the requirement “to be self-supporting” was illegal on the grounds that it would not be required as pre-authorization for any other type of medical procedure.

The Doe ruling fundamentally changed trans Medicaid access in Minnesota. The MA handbook had explicitly prohibited “transsexual surgery,” an exclusion that the Supreme Court declared violated Title XIX of the Social Security Act (as it was the only excluded procedure, even if deemed medically necessary by a physician). By striking this exclusion, the Supreme Court of MN enabled trans Medicaid recipients to apply for coverage for surgeries, so long as they could prove that the procedures were medically necessary.

From 1977 until 1995, trans Minnesotans insured under MA could access insurance coverage for gender affirmation surgeries.

For the most part, these procedures went unnoticed by the public or policy-makers. Then gender and sexuality protections began to emerge in the Minnesota state legislature. In 1993, that body amended the Human Rights Act, making discrimination on the basis of sexual orientation illegal (and broadly including gender identity and expression under the umbrella of “sexual orientation”). The amendment sparked backlash, especially against trans people. Suddenly, gender affirmation surgeries were under public scrutiny.

In 1994, the MN legislature introduced the first bill that would have denied any state coverage of transition procedures. By 1995, it passed a bill that successfully removed transition surgeries from the state’s Medicaid coverage, and, by 1998, hormone therapy was banned, too.

Legislators provided no economic rationale to justify these change; instead, Republican State Senator Jerry Ralph articulated a moral logic: although the total cost of transition-related health care billed to MA between 1995-1998 totaled just $20,000, Senator Ralph stated, “I don’t think that’s a lot, but I don’t think it’s something many of our tax payers want to be paying for with their taxes.”

Restrictions soon multiplied. In 2005, the legislature adjusted the 1998 amendment, removing the restriction on hormone therapy access but categorically excluding any Medicaid recipient from coverage for “sex-reassignment surgery.” The state estimated it would save $15,000 a year. Thus, as in 1998, transition care was excluded following an irrational economic justification. And it continues to shape Medicaid legislation. In May 2017, West Virginia Senator Robert Carnes suggested that his state could save money by refusing to cover “transgender surgery,” despite the fact that Medicaid there already excludes transition-related procedures. Determined to be unnecessary, excessive, and burdensome to state health care budgets, trans health care is targeted as an easy cut to Medicaid programs, even when this care is already excluded. And in the meantime, low-income trans people are positioned as underserving recipients of public assistance.

The argument that MN tax payers would not want to fund gender affirmation surgeries with their tax contributions also echoes Hyde’s logic in curtailing federal funds’ use in abortion procedures recently affirmed by the 1973 Supreme Court (passed just 11 months before the Doe decision).

Congressmen opposed to abortions used the only mechanism they had—a fiscal one—to obstruct what they saw as an immoral procedure. People with private insurance or those who can pay out-of-pocket can access gender affirmation surgeries and obtain abortions, the prohibitive costs of these procedures cause significant burdens to those who cannot use their insurance to pay for them. Legislators declare that the moral costs are too high, devaluing the health care needs of already marginalized populations.

So long as trans health care is framed as cosmetic, not medically necessary, or an excessive burden on state health and human services budgets, trans Medicaid recipients face impossible decisions about their health and wellbeing. Only 18% of low-income trans people have undergone any type of gender affirmation surgery. One in 3 trans people report that they’ve put off medical care because they cannot afford it. Elected officials have actively created a climate in which trans lives are devalued.

What to do? 

Without support at the federal level, it is up to the states to demonstrate that all people deserve broad access to health care. The Affordable Care Act makes categorical exclusions of transition-related care illegal, but its future is unsure, and the current Secretary of Health and Human Services, Tom Price, has resisted this provision, signaling that states may opt-out. States can forge ahead, though, by creating protections for transition-related care under state Medicaid laws. Some states have already taken steps in this direction. Similarly, abortion coverage might also be changed at the state level, but just three states voluntarily pay for medically necessary abortions for Medicaid recipients today.

As debates about the ACA continue, federal legislators must refuse the rhetoric that trans health care is too costly to find protection in any new iteration of “repeal and replace.”  Trans health is too easily framed as an “easy” cut, despite the small impact it would have on health care budgets. But morality-based justifications for restricting abortion and transition care access to low-income people are—and always will be—indefensible.

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

— Photo by Reina Gossett

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Strengthen, Not Dismantle, Title IX

by Alesha Durfee 

September 20, 2017

 

In the United States, almost 20 percent of women and two percent of men will be raped during their lifetime. At highest risk of sexual assault are those aged 18 to 24.

Title IX, originally passed in 1972, forbids discrimination in education based on gender and is intended to ensure equal access to educational opportunities for all students.  Title IX has been used to combat sexual harassment and violence on university and college campuses. In 2011, the Department of Education provided colleges and universities with guidelines for handling cases of sexual violence that occur in the college setting or between college students.

Those Title IX guidelines are under fire from the Trump administration, however. Spearheading this effort is Education Secretary Betsy DeVos, who on September 7 gave a speech at George Mason University where she called for a dramatic restructuring of the program, saying it has “failed many students.

After DeVos’ speech, some commentators applauded the Department of Education’s new direction. Andrew Miltenberg, a defense attorney for many students who have been defendants in Title IX proceedings, said, “Title IX was meant to be a tool for fairness, not a means for colleges and universities to micromanage students’ sex lives.”

To characterize the critically important provision of resources and responses to sexual assault survivors on campus through Title IX as universities “micromanaging student sex lives” is an example of how the rhetoric of the Trump administration has obscured acts of violence and distorted Obama-era policies, minimizing sexual violence and the impact it has on survivors.

The “micromanagement” of my “student sex life” occurred on the night of November 17, 1991. I had decided to walk back to my dorm from the store rather than wait 50 minutes for a bus. That decision has shaped the trajectory of my life.

As I walked through a dimly lit residential area, I was knocked down from behind and groped. My attacker talked to me softly as he started removing my clothes. My efforts to physically resist were useless, so I screamed, he ran, and I ran.  Luckily a young single mother at home alone with a preschooler did the unthinkable—she opened her door to me, even though (or perhaps because) I was hysterical. The mother called the police, who came to her house and started asking me questions, even though I was crying and nearly incoherent.

Why was I walking home alone? Didn’t I realize how dangerous it was? What did he look like? How could I not know what race he was? Why did he stop? Didn’t I have any injuries? Why were my clothes still intact? Didn’t anyone see anything? What evidence did I even have that the “alleged assault” occurred?

Horrified, the mother asked for a female officer. When rebuffed, she stopped the interrogation and got me some water. I will always be grateful to her for her kindness. The police wrote down the address of my dorm, put me in the back of the police car, and dropped me off outside of my building—in full view of the other students living in my dorm, who could only assume that a sobbing girl getting out of the locked back door of a police car on a Friday night had certainly violated the law.

And that was it.

That was the extent of the “investigation” into my victimization.

No officers walked me to my room. No detectives contacted me with questions. No photos were taken, nor was going to the hospital for a forensic exam an option (I didn’t have health insurance anyway). I was never given a report number or a copy of the police report that I hope exists.  No victim advocate called or visited.  No employee of the university checked up on me. No one explained that there was crime victim’s compensation, and that the state would help pay for badly needed care.

I stayed in bed for three days, floating between nightmares and flashbacks. I was far from home and couldn’t imagine who to ask for help. I racked up unexcused absences in my classes. With no resources, no follow-up, and no health insurance, I handled the rest of my sophomore year in college spectacularly badly. I dropped out of school for over a year. It is a wonder that I ever went back, much less that I made it through a PhD program and eventually became a tenured professor.

I’ve never shared my story publicly, even though I teach about and conduct research on domestic and sexual violence. Sexual assault is a highly stigmatizing crime.  Most survivors fear harsh and negative reactions if they disclose their abuse.

But it is because of this history that I’m motivated to speak out about the comments made by DeVos and others last week. My attack was not one that most college students (overwhelmingly, college women) experience. I didn’t know my attacker, and I don’t know if he was a student. It didn’t happen at a party or in a space where I felt safe. I hadn’t been served alcohol or drugged.  There was only one assailant. Someone stepped in at a critical moment to stop the attacker from returning and completing the assault.

But there are many parallels between what I experienced and what others have described that highlight the importance of critical components of the current Title IX system— the damage caused by the experience and my reticence to come forward, the officers’ focus on the lack of physical injury and refusal to investigate, and the need for survivor-centered support throughout the process of seeking justice.

I’m sure that if DeVos heard my story, she would agree that my assault was “reprehensible” and that justice was not served. As she notes, “acts of sexual misconduct are reprehensible, disgusting, and unacceptable.” I sincerely appreciate her strong words on sexual violence.

At the same time, it has taken me 26 years to be able to write my narrative. And I am white, cisgender, now middle-class, middle-aged, and well-educated, and have studied the law and sexual assault.

My narrative is shaped by so many layers of privilege. Many survivors of sexual violence do not have the privilege that I do, and are judged for not having stories that conform to societal stereotypes of blameless victims and clearly reprehensible assailants. Real life (and real victimizations) are always so much more complicated than rhetoric can possibly allow for.

I’m fairly certain that if DeVos had talked to me in those three days after the assault, or even the three years after the assault, she would have found me a far less sympathetic victim. Would that have made me a less worthy victim? Would my case have been seen as frivolous? Without a coherent story, witnesses, or evidence, would I have been one of those examples where “if everything is harassment, then nothing is[i]”?

DeVos and Title IX critics have focused on a number of aspects of the system they believe need to be changed.  Primary among them is the burden of proof used in Title IX cases. Title IX, like other civil rights laws, requires that sex discrimination, which includes sexual assault on campus, be proven by the preponderance of the evidence.  The preponderance of the evidence standard is used for most civil and family law cases in the United States—from domestic violence protection orders to multi-million dollar lawsuits. It means that the judge, commissioner, or whoever is adjudicating the case believes that it is more likely than not that the disputed events occurred. This standard is especially appropriate in cases of sexual violence, where the acts occur in private and there may be little physical evidence. Title IX adjudications are not criminal trials.  They do not pose the threat of incarceration.  They should not be treated as such.

DeVos also decries the lack of legal representation available to students in Title IX proceedings.  I agree that both students should have representation. But the lack of representation for either or both students does not justify abandoning the current system.

Instead, it highlights the lack of resources dedicated to Title IX investigations. This problem mirrors a larger crisis in access to justice in America.  “Meaningful” access to the courts — the ability to attend, participate in, retain legal counsel for, and fully understand court proceedings — “is increasingly out of reach for many Americans”. According to the Center for Law and Public Policy, since 1996 legal assistance in the United States has been “substantially curtailed” and, in some regions, “completely dismantled”. The Trump administration proposed completely defunding the Legal Services Corporation in March 2017. Perhaps DeVos’ concerns about students who have to, “without any legal training whatsoever”, “prepare an opening statement, fix exhibits and find witnesses”, should be used as a justification to increase funding for legal services across the United States. This way, millions of Americans who have to file for divorce, file for protection orders, defend their right to housing, and represent themselves in other matters involving their most basic human needs, can also have help navigating a complex and confusing civil legal system.  The solution to the lack of representation in Title IX proceedings is to provide each party with legal representation, not to jettison the process altogether.

DeVos and Title IX critics also decry the lack of training for the individuals administering the Title IX system, “who may or may not have any legal training in adjudicating sexual misconduct.” I agree with DeVos–“there is a competency gap here” when individuals who oversee these cases do not have proper training.  The same problem exists throughout the American legal system.  Judges, commissioners, justices of the peace, and others who adjudicate cases in the criminal justice and civil courts often lack current, comprehensive training on sexual and domestic violence. Why would we expect our universities and colleges to be any different?

DeVos should call for providing culturally competent, evidence-based training to anyone who oversees cases involving sexual and domestic violence, whether they be in the university/college, criminal justice, or civil legal systems.

This lack of training may be responsible for the incredibly low rate of help-seeking among college students who are sexually victimized. Only one in six college aged students get help from a victim-service agency[ii]. Just 20 percent of college students aged 18-24 report their sexual victimization to police, often because they feel that the “police would be insensitive and blame me.” That was certainly my experience in 1991.  Better training can help police to respond with greater sensitivity and less judgment in cases of sexual and domestic violence, enabling those students who want to use the criminal justice system to do so without the fear of being blamed for their trauma. Training has been and should continue to be an important part of Title IX.

In her speech, DeVos stated, “I wish this subject didn’t need to be discussed at all.” I wish it didn’t either. I wish sexual assaults didn’t occur. But they do occur, with shocking frequency, and we need to be thoughtful about how we address them. We should not dismiss the current process as a “kangaroo court” and abandon it altogether.  We should instead work to improve the process and ensure that all parties are well-informed, well-treated, and well-represented, so that the Title IX process provides a viable alternative to the criminal system.  We desperately need a process that is evidence-based, survivor-centered, respects the privacy of all parties, and provides resources (legal, medical, and mental health) to all parties involved. Abandoning the current system only makes it more likely that future college students will have experiences like my own.

Alesha Durfee is an Associate Professor at the School of Social Transformation, Arizona State University

— Photo by Wolfram Burner

Women in Prison: A Small Population Requiring Unique Policy Solutions

It is easy to overlook the presence of women in our prison system. After all, in Minnesota, women account for just over 7% of the prison population, a mere 737 individuals. And the same is true across the country, with women comprising just 7% of the estimated 1.53 million people held in state and federal correctional facilities. Given these small numbers, the path to reducing mass incarceration is generally framed through its impacts on men. Fewer researchers work on questions such as whether the reasons women are imprisoned are unique, whether their rehabilitative needs are different, or whether the experience of prison impacts their outcomes differently than it does men.

Food Stamps and Food Rights

Recent federal proposals to gut SNAP benefits and states’ calls to add paid employment and drug-testing as eligibility determinants are nothing new. They reflect longstanding concerns with dependence, waste, and fraud, as well as anxiety that black people, indigenous Americans, and immigrants might rise above abject status. They also reveal a widespread and longstanding suspicion of poor people—particularly poor women and especially poor women of color—as undeserving.

These attacks get repeated so often that it is easy to become numb to them.  Threatening to remove food aid has become commonplace.  This enmity can feel like a natural obstacle—as unmovable as a rock formation. It is difficult—but it is important—to remember that these attacks have not always been successful.  Indeed, countering them was crucial to the very creation of food stamps.  But it required a shift in the gender politics of food aid. The program does not, and perhaps never has, reflected the beneficence of the state.

Our modern system of food benefits emerged from public activism.  It required acceptance of women’s rights, and a move away from blaming women for their families’ hunger.

That wasn’t always how federal food aid worked.  The first federal “food stamps,” the earliest iteration of SNAP, were distributed in the 1930s. Given the longstanding suspicion that, in the midst of a depression, the poor might eat “too well”, these “benefits” were paltry. State and county participation was voluntary, and many counties erected additional barriers for enrollment. Participants often had to “buy” the stamps, so the poorest Americans could rarely access the benefits. Among goods supplied directly, surplus dairy and produce were sometimes withheld or distributed in public spaces (thus demeaning the recipients).

Racism and sexism were prominent in the applicants’ experience: local officials who screened potential participants could turn them away or put them through humiliation (and without federal oversight). For instance, food stamps were often denied in the summer, forcing sharecroppers to accept low-wage farm work, then allowed in the winter—to keep this seasonal work pool from moving away. Women of any race whose sexual or political habits were deemed unacceptable might also be denied, as could African Americans who registered to vote (the denial of aid served as retribution for their activism).

This early version of food stamps also failed by design: it was never intended to actually sustain hungry Americans, but to shore up prices and redirect farm surpluses.

As a result, federal funding for aid and access to needed food rose and fell in response to changes in farm production and federal policy. The programs were unpredictable and ultimately pretty useless.

This might seem similar to the system we have today; certainly, the same racialized suspicions are at play. But there are important differences: the expansive system that is under attack today (and for which so many are fighting) reflected a different historical moment. In the 1960s, rhetoric shifted from women’s dependence and need (and blame) toward a fundamental right to food. This era of social movement activism included activism around hunger.  Often led by women, these movements are why food stamps have become such a widespread and important system.

To understand this transformation, we need to leapfrog from the origins of food stamps in the 1930s to their expansion in the 1960s.  Then, groups of activists moving in civil rights and anti-racist circles articulated the notion that hunger (and what we might call food insecurity) had to be addressed should citizens ever move beyond immiseration. As Eldridge Cleaver famously said, “Black children who go to school hungry each morning have been organized into their poverty.”

In linking hunger to structural inequity, access to food emerged as a right.   Hunger emerged as a violation of rights rather than an unfortunate byproduct of poverty

We are learning more and more about this ‘60s-era anti-hunger activism. A group called  “Operation Life” used donations and USDA surplus food to operate a clinic and summer food program in Las Vegas. In Memphis, a group of poor women worked in concert with local physicians to treat hunger itself; their efforts nearly eradicated malnutrition-related illnesses among the children they served. Rural black sharecroppers turned to cooperative organizing and public gardens to offset hunger and unreliable incomes. The most famous of these efforts, the Black Panthers’ breakfast project, fed tens of thousands of children in dozens of cities—and became a major distraction to the FBI. Many of these programs emphasized what we might call food sovereignty—the right of people to feed themselves.

But not all did so. Predominantly white middle-class women organized volunteer groups to serve school lunches in many urban districts. When they realized how many children were unable to participate, a coalition of mainstream liberal groups wrote a devastating report on the failure of existing school lunch programs. That report revealed how widespread hunger remained among poor Americans.  These groups may seem distant from the Black Panthers, but they shared an activist culture and a vision of food as an economic right—a crucial first step in claiming one’s civil rights.

This era also made poor women’s food work, especially the work of African American women, visible. Even when men became the public face of anti-hunger programs, and even when there was genuine mixed-sex cooperation, it was often women’s work that energized the efforts.

As we are seeing in today’s struggle, it was often black women who spoke most often and most loudly about inadequate food in their communities. And it was their planning that brought the offerings from farms, community gardens, and free breakfast programs into daily survival strategies. These movements insisted that what might have been seen as work done for individual families was actually work that allowed people to make claims on each other and on the state. Women’s food work connected to struggles for autonomy and justice.

As a result, this era of anti-hunger programs detached food aid from earlier platforms intended to surveil and discipline women: not only did women not bear the blame for families’ poor nutrition, both they and policymakers came to understand that they had a right to communal and public support for food.

Media and congressional interest in hunger echoed the themes of these movements. Pressure on the Senate led to a subcommittee tour of Mississippi in the spring of 1967; the report and its publicity helped make Robert Kennedy a liberal icon, outraged both local and federal officials, and spurred a ten-state survey of hunger by the Department of Health, Education, and Welfare. Even before the survey could be completed, the American public was exposed to horrifying instances of malnourishment through efforts like the award-winning CBS documentary “Hunger in America.” The 1968 film opened with a scene of a doctor attempting—unsuccessfully–to save the life of a baby whose mother had been malnourished.  Senators received a flood of calls, and families in the film received shipments of food from strangers. Ensuing investigations reinforced that hungry people, including African American and Chicano people, were in fact vibrant human beings, capable of full lives but stymied by a violation of their rights to life: hunger.

By 1969 even conservative senators were calling for expanded, accessible food stamp programs.  (Many have argued that fear of success of standalone food programs was another driver in federal response.)

Where the media often turned their cameras on hungry children, the policies enacted bore the imprint of their activist mothers’ work. School lunch and breakfast programs became federal mainstays—and crucial components of many households’ resources. Women’s activism changed the national conversation on hunger.

It would be hard to overstate the positive outcomes of food stamps and other hunger programs. Food stamps alone serve tens of millions of people, and  social scientists credit them with reducing overall poverty (particularly for children). This is because supplemental food assistance allows families and households to spend what money they have on housing, education, clothing, and other basic needs, and to remain above the poverty line. It is especially important that SNAP has been able to expand quickly during recessions—reaching as many as 47 million people during recent downturns.   And, beyond food stamps, free breakfast and lunch programs, WIC, and countless other efforts, however imperfectly, make a real difference; food is a crucial ingredient in “freeing people from poverty,” to paraphrase Eldridge Cleaver.

In ways that analysts have not always appreciated, funding food programs did not just depend on government anti-poverty efforts or on congressional interest, but on a broad public willingness to see the failures of food distribution as systemic rather than the fault of individual mothers.

As spokespeople, as lawyers, as policymakers, as grassroots community workers, as impoverished mothers, and as visible activists—these movements shifted the political position of women relative to food. Women’s activism and antiracist politics reframed food as a collective right and poverty as a collective failure.

Attacks on food stamps revive tired tropes that hunger, malnourishment, and a host of other health and social problems reflect women’s failures to cook or provision.  They echo racist claims that public assistance encourages the dependence and passivity of women of color. But history tells a different story of possibility.  Our most effective systems of food aid began outside of Congress, with antiracist and feminist social movements.  Regaining their rhetoric of food as a right, and their assertion of women’s rights, can be effective tools in the contemporary fight over food.

-– Tracey Deutsch is an Associate Professor of History at the University of Minnesota

— Photo of the Black Panthers Breakfast Program from Eater