The Trump administration has made yet another devastating decision undermining girls’ and women’s education, and this time its effects will be felt throughout the world. Last week, the White House revealed that the U.S. would withdraw its support from the United Nations Educational, Scientific and Cultural Organization (UNESCO), an institution established in 1945 with the inauguration of the United Nations itself.
It is sadly ironic that the UNESCO announcement was made the day after the United Nations’ International Day of the Girl Child, an annual event on October 11 that draws attention to the challenges facing girls around the world and to advances in the achievement of their human rights.
Claiming the decision is due to UNESCO’s “anti-Israel bias,” it also provides further evidence of an administration opposed to multilateralism and ignorant of the vital role of UNESCO in promoting gender justice in education.
UNESCO’s work extends far beyond its most famous arm, the World Heritage Committee, which identifies and monitors World Heritage Sites. In fact, gender equality is one of UNESCO’s two “global priorities,” and its five primary objectives include the achievement of “quality education for all,” the development of “inclusive knowledge societies,” and the enhancement of “science knowledge and policy.”
UNESCO links its work on education and gender in a number of ways.
For instance, its Institute for Statistics plays a critical role in documenting gender gaps in access to education, and its International Bureau of Education works closely with governments and ministries of education to improve curriculum development, teacher education, and assessment. These efforts have resulted in the publication of numerous resources for educational practitioners and guidelines for policymakers. For example, UNESCO has recently been involved in the development of a resources to promote gender-responsive STEM (science, technology, engineering, and mathematics) curricula for African and Asian countries, and it partnered with UN Women to develop the Global Guidance on Addressing School-Related Gender-Based Violence report (2016), a comprehensive review of national policies and school-based practices in different countries aimed at creating safe spaces for all children.
UNESCO is among the most important multilateral institutions engaged in addressing gender equality in education around the world.
They and many others are working to ensure that the U.N. Sustainable Development Goals related to education (Goal 4) and gender equality (Goal 5) do not remain mere aspirations but are instead converted into policy and practice. The U.S. must remain a part of multilateral efforts to achieve these goals because it cannot claim to have achieved any of them, not quality schooling for all girls and boys as called for in Goal 4, or the elimination of gender-based violence and the provision of sexual and reproductive health services as demanded in Goal 5. By looking at the U.S. through an international lens, we see a nation whose administration is walking back from multilateral commitments to education and gender equity at a time when other nations are moving toward embracing them even more firmly.
Women in the United States have long been expected to care for others out of love or devotion rather than for money. This feminization of care work has resulted in low wages for domestic workers, who are often immigrant women, and the exclusion, historically and today, of care workers in many parts of the workforce from the protections of labor laws and policies.
In Part 1 of a recent interview, Gender Policy Report curator, Professor William P. Jones spoke to Sociologist Evelyn Nakano Glenn about this topic and its intersection with U.S. labor and immigration policy. Professor Nakano Glenn is a Professor of the Graduate School and founding director of the Center for Race & Gender at the University of California, Berkeley. In her recent book, Forced to Care, Nakano Glenn explains how the “valorization” of care work has led policymakers to exclude domestic workers from minimum wage laws and other labor protections on the grounds that state regulation would violate the sanctity of the domestic sphere. Even as those laws were extended to some care workers in the 1970s, Congress exempted home health care workers who were considered “companions” to the elderly. This changed with the reinterpretation of the Companionship Exemption during the Obama Administration, but this is likely to revert under President Trump.
As demand for care work has increased, many women have immigrated to the U.S., mostly from Latin America, the Caribbean, and Asia, to perform this work that few native-born workers are willing to do. President Trump’s proposed changes to immigration policies could drastically change the caregiving industry. Immigration policies have been shaped by differing perceptions of skill and the value of certain types of work. The naturalization of women’s caregiving creates a perception of carework as unskilled and unnecessary for the purposes of immigration policy; a perception far from the reality.
Excerpts from the conversation, edited for clarity, appear below. The full audio recording follows.
How do you see the historical work that you’ve done on race and gender, immigration and labor, helping us make sense of this contemporary time and this contemporary political moment?
I think one of the things that has changed in terms of immigration flows, especially around labor issues, is in some sense the feminization of immigration from particular sources, like the Philippines, where the biggest demand is around carework and those sorts of feminized work. So what’s happened in terms of the Philippines is that the flow of immigration from the Philippines has become much more female. So that’s a historic change. It has impacts intergenerationally within the Philippines where women leave to do care work and many of them leave their own children and partners behind in order to care for generally elderly or disabled people in the United States and Europe and some other locations. What has happened is a kind of intergenerational migration of women. Women migrate to do care work and finally return home and even though that lifts the family’s economic status, so they can pay for education and so forth for their children, it doesn’t actually create mobility for them, so the next generation then has to immigrate. That’s an interesting pattern. At the same time, the immigration of women from the Philippines has not led to a change in the division of labor in the Filipino family. In other words, the fathers or the husbands do not, in fact, take up the care of the children and those kinds of responsibilities. Instead, those kinds of responsibilities fall on the female relatives or sometimes care workers abroad hire poorer or more rural women to do their domestic chores. In an interesting way, it actually reinforces the valorization of motherhood. It hasn’t actually shifted that kind of gender politics. The women are seen as heroines. In other words, it’s become part of the mothering role to provide for the family by going abroad, but it doesn’t actually shift the gender division of labor within the Filipino family. It also doesn’t shift the gender division of labor in the first world, the United States or Europe. Because it’s still women who employ other women to do that kind of care work. So having that kind of available labor force makes it possible for women in the first world to be employed in certain occupations, but again it doesn’t shift the gender division of labor.
We have this whole migratory system set up around carework. It reflects a high demand for carework in the first world. And yet this work remains undervalued and it remains very low wage work. Why is that? On one hand, we see a valorization—or even a valorization of motherhood and caring in the abstract, but that doesn’t follow with a sort of monetary valorization.
Well, it’s considered to be a labor of love and therefore something that women do for either emotional satisfaction or because it’s what they’re expected to do. […] The idea is that on the one hand, the work is priceless and on the other hand, it doesn’t have a monetary value. And in a sense, the motivation for doing it should not be monetary. I think that’s the kind of argument that people do it for love. Very often the care worker is praised for going above and beyond what the requirements are by investing in that work emotionally. I think it’s built into the sort of moral thinking of people and then that’s also, on the other hand, trivialized within the law and the labor protections that there is a valorization of the home as a place of love and not as a place of economic exchange. Therefore, the care worker should not see her job as primarily economic. And that somehow that relationship between the caregiver and the care recipient is such that it shouldn’t be seen as a monetary exchange. So for that reason when the Fair Labor Standards Act was passed in the 1930s it specifically exempted care work through the Companionship Exemption because the home was seen as a sacred place where the government should not interfere. It prevented minimum wage and maximum hours from being enforced by the government. In an odd sort of moral thinking, by elevating the home as a sacred, private sphere then it omitted it from any kind of protections for the workers who were working in the home.
Who are the live-in home health care aids? What do you they do?
They are primarily immigrant women. In different areas of the country, there are different groups. Like in the New York area, a lot of Afro-Caribbean women are in the workforce. In a lot of areas, again it’s Filipina women who do that work. There was a famous case, Evelyn Coke vs. Long Island Care at Home. Evelyn Coke was a Jamaican woman who had worked for over 20 years as a live-in home care worker for an agency. Sometimes she would work 80 hours a week and never received overtime pay. But she was employed by a for-profit home care agency. So she sued the agency for overtime pay. This case went all the way up to the Supreme Court where she eventually lost the case on a technical basis. […] With the loss of the Supreme Court case, then the only thing that could happen was a change in the Labor Department’s interpretation of the Companionship Exemption. When Obama came into office there was a promise that that exemption would be reinterpreted so that live-in caregivers would be covered by the Fair Labor Standards Act.
It’s been difficult to follow changes in labor policy under the Trump administration, in part because these are administrative decisions and interpretive decisions. How you see these longstanding debates over the value of care and how might they inform debates over changing immigration laws to value particular skills?
In some ways, carework is being seen as unskilled because it is something that women know how to do naturally. The same thing could be said about agricultural workers. Usually, the argument is not that it’s skilled worked, but that it’s a type of work that native-born Americans are not willing to do. […] The ability to do some types of work are racialized or gendered. They’re kind of natural and therefore, in some sense, they’re not skilled. But more often, the argument has been around Americans being unwilling to do this type of work. They’re not willing to do agricultural labor. They’re not willing to do carework. Which can be dirty work. […] So it will be interesting to see the way this is played out. Traditionally, the farmers, the agri-businesses have had tremendous political clout in being able to get workers, even though supposedly the immigration law is going to be based on skills that are in short supply. I think that those are not the battlegrounds on which the whole issue of who and what types of people are going to be allowed in is going to be fought. There will be a lot of different economic interests, health care industry, insurance companies, agri-businesses, all those players will be in the mix.
President Trump’s nominees show a stark trend toward less diverse candidates by race and gender. White men consist of 74% of President Trump’s cabinet and cabinet-level positions, 72% of lower federal court nominees, and 90% of U.S. Attorney appointees. In addition, 79% of President Trump’s Executive Branch nominees are men. Far fewer women and minorities are nominated to positions of power in President Trump’s administration compared to President Obama’s administration. Here is an intersectional breakdown of each position by race and gender.
Among President Trump’s 23 cabinet and cabinet-level positions,i 17 (74%) are white men,ii 2 (9%) are white women, 2 (9%) are Asian American women, 1 (4%) is a Latino man, and 1 (4%) is an African American man. President Trump’s cabinet is much less diverse than recent Presidents’ cabinets. In comparison, President Obama’s first cabinet consisted of 12 (50%) white men, 4 (17%) white women, 2 (8%) African American men, 2 (8%) African American women, and 1 (4%) Latina woman.
i The Secretary of Homeland Security position remains unfilled, but was originally filled by John Kelly, a white man.
ii This includes Former Secretary of Health and Human Services, Tom Price, who resigned September 29, 2017.
As of September 7, 2017, President Trump has submitted 50 nominees to the federal circuit and district courts, most of which are white and male. Of those nominees, 36 (72%) are white men, 10 (20%) are white women, 1 (2%) is an Asian American man, 1 (2%) is an Asian American woman, 1 (2%) is an African American man, and 1 (2%) is a Latino man. President Trump has nominated fewer women (22%) than President Obama’s first 26 nominees, of which 10 (38%) were women. President Trump has also nominated many fewer non-white candidates (8%) compared to President Obama’s 14 candidates (54%) out of his first 26 nominees.
President Trump’s 42 nominees for U.S. Attorney are predominantly male and white. 38 (90%) of the nominees are white men. There is one Asian American woman (2%), one Asian American man (2%), one African American man (2%), and one Native American man (2%). Only one woman has been nominated. This is a stark contrast to President Obama, who had nominated 20 U.S. Attorneys at a similar point in his presidency. Of President Obama’s nominees, 11 (55%) were white men, 4 (20%) were white women, 3 (15%) were African American men, 1 (5%) was an Asian American woman, and 1 (5%) was an Asian American man.
President Trump’s nominees for Executive Branch appointments have also been predominantly male. 234 men (79%) and only 64 (21%) women have been nominated or confirmed for Executive Branch appointments. Data is unavailable by race. This is a stark comparison to President Obama, who nominated large numbers of women and minorities to the Executive Branch, including 53.5% of women and minorities to 80 top policy positions.
With yet another announcement of changes to the U.S. refugee program, it is necessary to assess the program and what Trump’s policy changes will likely mean in the lives of refugees and asylum seekers, including their specific implications for women.
The passage of the 1980 Refugee Act established two processes by which displaced persons can gain legal recognition as refugees to the U.S.—refugee resettlement and asylum. Refugee resettlement happens when groups of people from the same place flee their homes because of long-term conflict and are granted the right to come to the U.S. Asylum seekers arrive as individuals or families within or at the country’s borders to make legal cases that their experiences or fears have rendered them refugees. Prior to 1980, the asylum system was haphazard and the President, through parole powers, had significant discretion in determining which groups and how many people would be welcomed as refugees. This pre-‘80s approach is making a return, both in the discretion of the executive office to determine the details of refugee admittances and in a narrowing of asylum processes to the detriment of women applicants.
The policies implemented by President Trump in less than a year are impacting the ability of both asylum seekers and refugees in the resettlement program to make their homes in the U.S.
The January 27th Executive Order, “Protecting the Nation from the Foreign Terrorist Entry into the United States,” for example, reduced annual admittances through the refugee resettlement program from 110,000 to 50,000. It also introduced a 120-day suspension of refugee resettlement activities, and indefinitely halted programs to resettle refugees from Syria. Under the new travel ban issued on September 24, 2017, individuals from Iran, Libya, Syria, Yemen, Somalia, Chad, and North Korea are prohibited from travel into the U.S., and reports indicate that they will also be banned from refugee resettlement opportunities. Just today, the president announced that he would limit refugee resettlements even further, the cap moves from its current 50,000, introduced in January, to the lowest cap in the history of U.S. refugee resettlement—45,000 refugees a year.
And when it comes to the asylum system, preferences for particular types of refugees seem to be creeping back into the process.
First, there continues to be a preference for particular nationalities. For example, if you are an asylum seeker from Guatemala, El Salvador, or Honduras you have about a 4% likelihood of having your case approved. If you are from China, your chances of approval are closer to 50%. Second, formal and informal policy are negatively impacting women asylum seekers. Starting on June 20, 2017 the executive office ended a program that kept asylum seekers with particularly challenging circumstances out of detention centers while awaiting their asylum determination. This means that more children, pregnant women, persons with severe physical and mental health, and families with small children are to be detained in prison-like conditions for the months and years it may take for their cases to be heard by immigration judges. Third, at the U.S.-Mexico border, reports of an administration-level informal policy have arisen: according to Human Rights Watch, migrants with claims to asylum have been denied entrance, with border agents insisting that the U.S. asylum program has ended.
Attorneys General have significant influence over the asylum process.
In addition to appointing judges to the immigration courts and the Board of Immigration Appeals, the Attorney General—currently former Congressman Jeff Sessions—has the right to take charge of individual case decisions as well as broader policy decisions. In the past, this discretion has had significant consequence for gender-based claimants, such as Guatemalan domestic abuse survivor Rody Alvarado. Alvarado was first granted asylum in 1995, but attorneys for the immigration and customs office appealed and her asylum status was revoked. Six years later, just before leaving office, then-Attorney General Janet Reno vacated the denial, giving the lower courts instructions for re-approving Alvarado’s case. Reno’s successor, Attorney General John Ashcroft, took the case back from the lower courts, only to sit on the decision for the entirety of his term in office. Alvarado wouldn’t finally receive notification of her asylum until 2009—14 years after her first asylum application. If Attorney General Sessions’ history on gender and sexuality issues is any indication, future asylum seekers making gender-based claims will likely share Alvarado’s experience and more individual asylum cases will be repurposed to guide U.S. refugee policy.
The particularly poor record regarding the U.S.’s acceptance of women refugees is not surprising.
Almost as soon as the 1980 Refugee Act was established, immigration courts began to hear the asylum cases of women fleeing sexual and gender-based violence (SGBV) from countries around the world. They testified to social repression and castigation, fear of genital cutting, severe intimate abuse, forced abortions and sterilization, and sexual violence at the hands of military and police, as detailed in my book, Gendered Asylum: Race and Violence in U.S. Law and Politics. Save for rare exceptions like Rody Alvarado, women fleeing gender-based violence run up against a very basic problem: the way gender, as a category, is defined and understood.
Like most countries, the U.S. draws on the United Nations definition of a refugee as someone who is outside of their home country and has a well-founded fear of persecution on account of their race, religion, nationality, political opinion or membership in a social group. Gendered asylum seekers are an awkward fit since, under this definition, gender is only ever given segregated and contingent protected status. Each woman making a claim to gender-based asylum must start from the basis of developing a unique description of her social group membership. There is no a priori recognition that gender counts as a “social group,” and immigration courts have asserted that it’s too broad a category on its own.
Gender-based asylum claimants consequently find themselves maneuvering significant rhetorical hoops and hurdles before they are even able to assert that they are, in fact, refugees.
Including gender or sex as a protected category in the refugee definition might reduce one barrier for these applicants, but it is clear from more than three decades of asylum case law that there are other significant hurdles. For example, asylum seekers must demonstrate that their persecutors identified them as a member of the named social group and persecuted them because of that identity. That is, immigration judges demand a type of evidence that is unlikely to exist: the assertion, by an abuser, that “I am violating you because you are a woman who resists male domination” before or during the abuse. Claimants must also show that their persecution is political. Not only are women asylum seekers all too frequently seen as private actors without connection to the political, but the violence that women experience—often sexual in nature—is commonly accounted not as a political act of power or control but as the result of an individual’s personal desires or opinions. If immigration judges hold these beliefs about women and sexual violence it can be hard to demonstrate a clear political connection for the persecution and make a case for gender-based asylum.
The discretionary powers of the executive branch meant, in the pre-1980 era, that there were vast discrepancies in who could access the U.S. asylum system. Under Trump, gender and nationality are poised to revive and exacerbate such discrepancies. Those concerned about international human rights must insist that who “counts” as a refugee cannot depend on setting parameters around categories such as gender or nationality as preconditions for protection.
President Trump’s bombastic first speech to the United Nations (UN) General Assembly on September 19 is yet another signal that the current U.S. administration is much more focused on war than on peace. Threats to “totally destroy North Korea” as well as the tossing aside of a nuanced Iran treaty like it was just a bad real estate deal are bad omens for stability, human rights, and respectful bilateral and multilateral negotiations. Trump’s view of security is also a bad omen for women.
The Women, Peace, and Security (WPS) Agenda focuses on women and armed conflict and is based on UN Security Resolution 1325 and the six related resolutions that stem from it. The Agenda looks at impacts and special needs/protections for women, as well as the transformative power of including women in decision-making and conflict prevention, resolution, and post-conflict recovery.
At the international level, the UN is mandated to include WPS considerations in its activities across the board, such as increasing the role of female peacekeepers and decision-makers, focusing on women in post-conflict negotiations, ending impunity regarding crimes against women during conflict, and including women’s protections/needs in emergency response. A central tenet of WPS is that women need to have a central seat at the table in all facets of domestic and international security policymaking.
The Obama Administration issued the U.S.’s first National Action Plan on WPS in 2011, fully eleven years after the Sec. Res. 1325’s adoption. The goal of the plan claimed to be “as simple as it [was] profound: to empower half the world’s population as equal partners in preventing conflict and building peace in countries threatened and affected by war, violence and insecurity.”
The Obama Administration took some important steps toward embracing the more powerful aims of WPS, such as training the U.S.’s own foreign service staff on gender equality, and working multilaterally to strengthen peacekeepers’ capacity to protect civilians from gender-based violence.
The Trump Administration’s approach to the WPS Agenda seems to be one of neglect, characterized by indifference to women’s issues, incompetence in diplomacy, and an infatuation with all things military. President Trump’s shift away from diplomacy and toward militant rhetoric undoubtedly threatens the critical space for WPS. The lack of diplomatic personnel and policy direction on WPS has a withering effect. In Trump’s world, safeguarding women is the job of strong men.
Conscious of these regressive policies, many are pushing back against the (masculinized) militarization of global security, which could suggest that the “era of women,” of which the WPS agenda is part, has moved the agenda far enough to withstand this assault. Women remain in key security positions in governments and international organizations, and finance-conscious leaders understand that human-centered security is far more sustainable than butting nuclear warheads.
The most immediate impacts on the U.S. commitment to the WPS agenda are likely to come from the Trump Administration’s proposed cuts in the aid budget and the Administration’s overall “we’re taking names” posture towards the UN.
Trump’s proposed 2018 budget for the Department of State and USAID— the main entities with a role in the WPS Agenda—not only directly targets programs that benefit WPS and women’s rights, but they make a clear statement that militarism and masculinities will once again be front-and-center. For example, Trump has vowed to slash 30 percent of the budget for the State Department and USAID. The budget request is almost completely silent on women. Instead the priorities are peppered with phrases like “defeating terrorism,” “improving cybersecurity,” and “strengthening economic imperatives.” So much for democratic values.
The Trump administration also highlights reductions in collaborative international efforts such as joint peacekeeping operations. A particular target for State Department budget cuts are U.N. programs. Ambassador Nikki Haley warned, “Anything that seems to be obsolete and not necessary, we’re going to do away with.” UN Peacekeeping Operations were Haley’s first target. The U.S. advocated a $1 billion reduction to the blue helmets’ $8 billion budget, but settled for a reduction of $600 million. An exuberant Haley tweeted, “Just 5 months into our time here, we’ve cut over half a billion $$$ from the UN peacekeeping budget & we’re only getting started.”
The U.S. pays a quarter of the U.N. Peacekeeping budget, so we just saved ourselves $150 million (with an “m”) by cutting peacekeeping troops in the Ivory Coast and Sudan. Just for comparison, the Trump Administration is proposing more than $600 billion (with a “b”) for our military.
Beyond the numbers, the Trump Administration has been sending signals on women and human rights through active steps to destroy the few institutions created to further these goals. The position of U.S. Ambassador of the Office of Global Women’s Issues remains vacant, though WPS is, surprisingly, still listed as a priority on the Administration’s website and the Obama-era National Action Plan on WPS has not yet been erased (an oversight, perhaps?).
Also threatened is the entire Office of Global Crimes, which is a key actor in accountability and prevention regarding rights violations against women and girls.
In addition, there is a salient absence of the mention of women’s rights and WPS in the Administration’s rhetoric. For example, in the compilation of Secretary of State Tillerson’s remarks online, not a single statement directly touches on women, girls, gender, or reproductive rights. Rather than attend himself, Tillerson sent an Undersecretary to join the First Lady, Melania Trump, to deliver the Secretary of State’s International Women of Courage Awards in March 2017. While actions speak louder than words, the absence of words in this case speaks volumes about the weight this Administration is giving to women’s issues, including WPS.
What rhetoric does exist involves areas where women and girls are categorized as vulnerable creatures, objects in need of protection, rather than as important actors in generating shifts in policy or culture. Human trafficking, for instance, remains in the list of diplomatic priorities. As for women in the military, in addition to his ban on transgender service members, Trump stated that rape was a natural result of putting men and women together. This new policy rhetoric threatens to undermine advances made in gender and military service and gender and human rights.
It is, of course, important to remember that international policy does not rise and fall with just one man— or woman – and that some logical constituents of a stronger military do not support Trump’s policy directions. For example, 121 retired generals wrote a letter to Congress in February 2017 voicing their concern about aid cuts as they directly relate to security concerns. Similarly, Senator Lindsey Graham said Trump’s proposal to cut the diplomacy and aid budget by one-third would “gut soft power” and “put a lot of people at risk.”
Indeed, many have commented on the consolidating power Trump’s election has had, particularly around women’s rights. The Women’s Marches were the largest in the US since the Civil Rights movement, and there were more than 673 sister marches worldwide. Not necessarily because of Trump, but perhaps more indicative of the rising force of the women’s movement in this era, feminist activism in Poland, across Latin America, and in Ireland and South Korea, are bringing women’s issues to the fore. Thus, the era that brought about the WPS Agenda may have laid a strong foundation from which the rights movement can thrive, even in the face of a misogynistic Administration. That said, a movement and agenda deprived of oxygen— in this case, political will and funding— will face a more challenging path forward.
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.
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.
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