On the anniversary of the tragic Pulse nightclub shooting that killed 49 people in Orlando, the Office for Civil Rights of the Department of Health and Human Services rolled back Obamacare’s Section 1557 of the Affordable Care Act. The new provision removes protections against discrimination based on sexuality or gender identity. This means healthcare providers can deny care specifically based on moral bias or opinion.
In contrast to this, in a landmark decision, the U.S. Supreme Court recently ruled that employment discrimination on the basis of sexual orientation or gender identity is prohibited under federal civil rights law. In a 6-3 ruling, Justice Neil Gorsuch stated:
“An individual’s homosexuality or transgender status is not relevant to employment decisions,” Gorsuch wrote. “That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
While this is a major win for the LGBTQIA+ community, it is indicative of a disconcerting split between the executive and judicial branches of government, as well as within the nation at large. The misalignment between these decisions only further muddies the waters when it comes to protections for the LGBTQIA+ community.
Some have argued that the Supreme Court decision has the potential to negate the rolling back of Section 1557, since its very basis is discriminatory in nature. However, until clearly litigated or enacted, the implications of the Supreme Court decision on the Affordable Care Act remain unclear. Until clarity is achieved, these misalignments further exacerbate the vulnerability of LGBTQ+ communities, particularly for trans individuals.
Most recently, the Supreme Court ruling in Our Lady of Guadalupe School v. Morrissey-Berru bolstered the position of religious institutions against employment discrimination lawsuits, causing further ambiguity regarding legal protections for the community. The decision could have devastating consequences for LGBTQIA+ individuals employed by religious schools.
Such politically charged decisions often place accountability in the pockets of taxpayers, often leading to lawsuits.“If they don’t [rescind Section 1557], we are prepared to continue to use all of our resources, including litigation, to sue them and make sure that the rule is never implemented,” said Alphonso David, President of the Human Rights Campaign. This also includes adoption rules for same-sex couples.
Enacting change requires both participation from voters and representation of various minority voices in government. The Williams Institute at the UCLA School of Law, a sexual orientation law and public policy think tank, estimates that 9 million (about 3.8%) of Americans identify as gay, lesbian, bisexual or transgender. Representation of all identities in the executive realm is key. We need more people like Ritchie Torres, the openly gay politician from the Bronx, to represent diversity within congress.
The removal of provisions, laws, and rules that affect vulnerable communities are further inhibiting the limitations of progression. The results are debilitating towards the mission of equality and the advancement of fair treatment.
