Commentary Environment

Toxic Chemicals: Neglected Threats to Health and Reproduction

Jennifer Rogers

Despite the introduction of thousands of new chemicals into the products we use every day, the Toxic Substances Control Act has undergone no revisions since 1976.

America’s bicentennial year, 1976, was one of phenomenal events and inventions: Apple Inc was founded; West Point began to admit women; my husband was born; and the Toxic Substances Control Act (TSCA), our primary chemical safety law, was enacted. In the ensuing 34 years, much has changed. The boxy desktop computer bears almost no resemblance to the recently launched iPad; women are serving valiantly in both Iraq and Afghanistan; and my husband has gone from a pudgy baby to a gray-haired professor.

Unfortunately, despite the introduction of thousands of new chemicals into the products we use every day, TSCA has undergone no revisions.  Scientists, health care providers, reproductive and environmental health advocates agree: TSCA has not kept up with the times.

When TSCA was passed in 1976, it was considered a huge step forward in the government’s ability to regulate toxic chemicals. To some degree, however, TSCA was already outdated before it was signed into law. Many dangerous chemicals were “grandfathered in” under the new law and remain in use today. Many new chemicals remain unregulated because the legislation was limited in scope.

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As a result, one of the primary deficiencies of TSCA is that the chemicals we encounter in our daily lives—in our water and baby bottles, food containers, children’s toys, household cleaners, and personal care products—are not tested for safety and these chemicals are harming the reproductive health and fertility of women, men and children. Lower-income and communities of color are disproportionately and adversely affected by chemicals in consumer products whether through workplace exposure, specific marketing of niche products, or through products sold in and to their communities. For example, dollar stores, typically located in lower-income communities, are often the last stop for consumer products that can not or will not be sold in other stores. These products, including house wares, toys, jewelry, and food and drink containers, often have been recalled or discontinued. However, these products end up in dollar stores with little regulation or oversight. Likewise, environmental and reproductive justice organizations have long been concerned with the toxic chemicals found in skin lighteners and hair relaxers, products marketed specifically to women of color.

Pregnant women and children are another group among the most vulnerable to toxic chemicals.  We know that the short- and long-term effects of early exposure to even low levels of toxic chemicals have been linked to a host of health problems including childhood cancer, early puberty, reduced fertility, and learning and developmental disabilities, including autism and ADHD.  Phthalates, for example, a common product found in vinyl, cosmetics, fragrance, and medical devices, has been linked to early puberty, infertility and endometriosis. Although some phthalates have been banned from children’s products, they remain poorly regulated under TSCA.

Toxic chemicals can accumulate or build up in our bodies, negatively impacting our health and our future pregnancies long after exposure. Hormone disruptors (also known as endocrine disrupting chemicals) are one class of chemicals of particular concern because they alter the essential hormone balance required for overall health including the function and regulation of our reproductive health system. Bisphenol A (or BPA) is a widely known hormone disruptor commonly used in plastics products such as water and baby bottles as well as in the lining of canned food, beverages, and infant formula. In 2008, BPA became a household word when news emerged that the popular bottle maker, Nalgene, decided to stop using plastic made with BPA due to growing concern about the negative health impacts of this chemical.

Experience has shown that TSCA does not provide EPA with the regulatory mechanisms necessary to protect public health. The decision by Nalgene, for example, was made voluntarily due to consumer and media pressure. The federal government has not issued any regulations regarding BPA. In addition to phthalates and BPA, there are currently more than 80,000 different chemicals produced and used in the US. In 34 years, EPA has been able to require testing on just 200 of these chemicals and only 5 have been restricted. In fact, EPA tried to use TSCA to restrict asbestos 18 years ago and failed; they haven’t tried since. And why would they? Despite spending tens of millions of dollars and amassing thousands of pages of evidence, the EPA was unable to prove that asbestos presented an “unreasonable risk.” In other words, TSCA’s burden of proof is so high that under this legislation not even the worst of the worst chemicals, like asbestos, can be taken off the market.

Even as I write this, I begin to feel nervous, angry, and overwhelmed. How can this be true? For years, I’ve used products that may have caused me and my family harm. I have come to realize that as much as anyone can try to do research and keep up with the science, we can’t all be PhDs in chemistry. And we can’t shop our way out of the problem. I shouldn’t have to figure out what’s safe and what’s not.  This is why we have government. We need a new, modern law that protects us all. Having just witnessed passage of historic healthcare legislation now is the time for Congress, especially the Democratic Party, to get serious about issues that are adversely affecting reproductive health, family health, and the general health of lower-income populations.

I believe the reproductive health movement must be a key player in achieving chemical policy reform.  Our movement has a legitimate, unique, and necessary role to play in educating the American public about the dangers of toxic chemicals and in mobilizing for policy change. Not only do we have considerable resources and infrastructure to contribute to these efforts, but according to recent opinion research, three of the four most effective messages in support of chemical policy reform involve reproductive health concerns.

And now is the opportune time for reproductive health and justice organizations to get involved. The impact of toxic chemicals on human health has recently captured the imaginations of the media, public, and policymakers. In fact, 12 states and the District of Columbia have already introduced legislation to ban BPA. Nicholas Kristof of the New York Times has written on the links between toxic chemicals and diseases such as cancer and autism.

Perhaps most notably, champions of environmental health in the US Senate currently stand poised to introduce legislation to reform TSCA. Sponsored by Frank Lautenberg (D-NJ), the Safe Chemicals Act of 2010 would empower the EPA to require testing of chemicals and to regulate chemicals we know harm health. It should come to no surprise that our main opposition for reform is the chemical industry. However, the leading chemical industry association, the American Chemistry Council, finally endorsed reform of TSCA in 2009, reversing its long-standing opposition. But reforming TSCA is not about an updated marketing ploy—instead, we need to ensure this legislation includes a few key principles:

  • Basic Safety Information for All Chemicals: All chemicals should have basic health and safety information as a condition for entering or remaining on the market — something other laws already require for drugs and pesticides.  
  • Expedited Action on the Most Dangerous Chemicals: Ensure that the EPA moves quickly to reduce the impact of those chemicals already known to be dangerous.
  • Real-World Analysis Using the Best Science: Currently, chemicals are assessed (when assessed at all) as if a person is exposed to individual chemicals in isolation.  Instead, we need to follow the National Academies of Sciences recommendations that cumulative exposure to chemicals, such as they are experienced in the real world, should be considered when the EPA reviews chemicals for safety.

And while toxic chemical reform many not be as sexy as the newest gadget from Apple or as visually symbolic as women at West Point, the impact these chemicals are having on our nations collective reproductive health is dangerous and pervasive. If we want to give birth to and raise the next generation of innovative thinkers or brave service members, we need to start at the beginning: the health of their mothers. Thousand of people have added their voices to this growing movement– will you?

Analysis Politics

Advocates: Bill to Address Gaps in Mental Health Care Would Do More Harm Than Good

Katie Klabusich

Advocates say that U.S. Rep. Tim Murphy's "Helping Families in Mental Health Crisis Act," purported to help address gaps in care, is regressive and strips rights away from those diagnosed with mental illness. This leaves those in the LGBTQ community—who already often have an adversarial relationship with the mental health sector—at particular risk.

The need for reform of the mental health-care system is well documented; those of us who have spent time trying to access often costly, out-of-reach treatment will attest to how time-consuming and expensive care can be—if you can get the necessary time off work to pursue that care. Advocates say, however, that U.S. Rep. Tim Murphy’s (R-PA) “Helping Families in Mental Health Crisis Act” (HR 2646), purported to help address gaps in care, is not the answer. Instead, they say, it is regressive and strips rights away from those diagnosed with mental illness. This leaves those in the LGBTQ community—who already often have an adversarial relationship with the mental health sector—at particular risk.

“We believe that this legislation will result in outdated, biased, and inappropriate treatment of people with a mental health diagnosis,” wrote the political action committee Leadership Conference on Civil and Human Rights in a March letter to House Committee on Energy and Commerce Chairman Rep. Fred Upton (R-MI) and ranking member Rep. Frank Pallone (D-NJ) on behalf of more than 100 social justice organizations. “The current formulation of H.R. 2646 will function to eliminate basic civil and human rights protections for those with mental illness.”

Despite the pushback, Murphy continues to draw on the bill’s mental health industry support; groups like the American Psychiatric Association (APA) and the National Alliance on Mental Illness (NAMI) back the bill.

Murphy and Rep. Eddie Bernice Johnson (D-TX) reintroduced HR 2646 earlier this month, continuing to call it “groundbreaking” legislation that “breaks down federal barriers to care, clarifies privacy standards for families and caregivers; reforms outdated programs; expands parity accountability; and invests in services for the most difficult to treat cases while driving evidence-based care.”

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Some of the stated goals of HR 2646 are important: Yes, more inpatient care beds are needed; yes, smoother transitions from inpatient to outpatient care would help many; yes, prisons house too many people with mental illness. However, many of its objectives, such as “alternatives to institutionalization” potentially allow outpatient care to be mandated by judges with no medical training and pushed for by “concerned” family members. Even the “focus on suicide prevention” can lead to forced hospitalization and disempowerment of the person the system or family member is supposedly trying to help.

All in all, advocates say, HR 2646—which passed out of committee earlier this month—marks a danger to the autonomy of those with mental illness.

Victoria M. Rodríguez-Roldán, JD, director of the Trans/GNC Justice Project at the National LGBTQ Task Force, explained that the bill would usurp the Health Insurance Portability and Accountability Act (HIPAA), “making it easier for a mental health provider to give information about diagnosis and treatment … to any ‘caregiver’-family members, partners or spouses, children that may be caring for the person, and so forth.”

For the communities she serves, this is more than just a privacy violation: It could put clients at risk if family members use their diagnosis or treatment against them.

“When we consider the stigma around mental illness from an LGBT perspective, an intersectional perspective, 57 percent of trans people have experienced significant family rejection [and] 19 percent have experienced domestic violence as a result of their being trans,” said Rodríguez-Roldán, citing the National Transgender Discrimination Survey. “We can see here how the idea of ‘Let’s give access to the poor loved ones who want to help!’ is not that great an idea.”

“It’s really about taking away voice and choice and agency from people, which is a trend that’s very disturbing to me,” said Leah Harris, an organizer with the Campaign For Real Change in Mental Health Policy, also known as Real MH Change. “Mostly [H.R. 2646] is driven by families of these people, not the people themselves. It’s pitting families against people who are living this. There are a fair number of these family members that are well-meaning, but they’re pushing this very authoritarian [policy].”

Rodríguez-Roldán also pointed out that if a patient’s gender identity or sexual orientation is a contributing factor to their depression or suicide risk—because of discrimination, direct targeting, or fear of bigoted family, friends, or coworkers—then that identity or orientation would be pertinent to their diagnosis and possible need for treatment. Though Murphy’s office claims that psychotherapy notes are excluded from the increased access caregivers would be given under HR 2646, Rodríguez-Roldán isn’t buying it; she fears individuals could be inadvertently outed to their caregivers.

Rodríguez-Roldán echoed concern that while disability advocacy organizations largely oppose the bill, groups that represent either medical institutions or families of those with mental illnesses, or medical institutions—such as NAMI, Mental Health America, and the APA—seem to be driving this legislation.

“In disability rights, if the doc starts about talking about the plight and families of the people of the disabilities, it’s not going to go over well,” she said. “That’s basically what [HR 2646] does.”

Rodríguez-Roldán’s concerns extend beyond the potential harm of allowing families and caregivers easier access to individuals’ sensitive medical information; she also points out that the act itself is rooted in stigma. Rep. Murphy created the Helping Families in Mental Health Crisis Act in response to the Sandy Hook school shooting in 2012. Despite being a clinical psychologist for 30 years before joining Congress and being co-chair of the Mental Health Caucus, he continues to perpetuate the well-debunked myth that people with mental illness are violent. In fact, according to the Department of Health and Human Services, “only 3%-5% of violent acts can be attributed to individuals living with a serious mental illness” and “people with severe mental illnesses are over 10 times more likely to be victims of violent crime than the general population.”

The act “is trying to prevent gun violence by ignoring gun control and going after the the rights of mentally ill people,” Rodríguez-Roldán noted.

In addition, advocates note, HR 2646 would make it easier to access assisted outpatient treatment, but would also give courts around the country the authority to mandate specific medications and treatments. In states where the courts already have that authority, Rodríguez-Roldán says, people of color are disproportionately mandated into treatment. When she has tried to point out these statistics to Murphy and his staff, she says, she has been shut down, being told that the disparity is due to a disproportionate number of people of color living in poverty.

Harris also expressed frustration at the hostility she and others have received attempting to take the lived experiences of those who would be affected by the bill to Murphy and his staff.

“I’ve talked to thousands of families … he’s actively opposed to talking to us,” she said. “Everyone has tried to engage with [Murphy and his staff]. I had one of the staffers in the room say, ‘You must have been misdiagnosed.’ I couldn’t have been that way,” meaning mentally ill. “It’s an ongoing struggle to maintain our mental and physical health, but they think we can’t get well.”

Multiple attempts to reach Murphy’s office by Rewire were unsuccessful.

LGBTQ people—transgender, nonbinary, and genderqueer people especially—are particularly susceptible to mistreatment in an institutional setting, where even the thoughts and experiences of patients with significant privilege are typically viewed with skepticism and disbelief. They’re also more likely to experience circumstances that already come with required hospitalization. This, as Rodríguez-Roldán explained, makes it even more vital that individuals not be made more susceptible to unnecessary treatment programs at the hands of judges or relatives with limited or no medical backgrounds.
Forty-one percent of all trans people have attempted suicide at some point in their lives,” said Rodríguez-Roldán. “Once you have attempted suicide—assuming you’re caught—standard procedure is you’ll end up in the hospital for five days [or] a week [on] average.”

In turn, that leaves people open to potential abuse. Rodríguez-Roldán said there isn’t much data yet on exactly how mistreated transgender people are specific to psychiatry, but considering the discrimination and mistreatment in health care in general, it’s safe to assume mental health care would be additionally hostile. A full 50 percent of transgender people report having to teach their physicians about transgender care and 19 percent were refused care—a statistic that spikes even higher for transgender people of color.

“What happens to the people who are already being mistreated, who are already being misgendered, harassed, retraumatized? After you’ve had a suicide attempt, let’s treat you like garbage even more than we treat most people,” said Rodríguez-Roldán, pointing out that with HR 2646, “there would be even less legal recourse” for those who wanted to shape their own treatment. “Those who face abusive families, who don’t have support and so on—more likely when you’re queer—are going to face a heightened risk of losing their privacy.”

Or, for example, individuals may face the conflation of transgender or gender-nonconforming status with mental illness. Rodríguez-Roldán has experienced the conflation herself.

“I had one psychiatrist in Arlington insist, ‘You’re not bipolar; it’s just that you have unresolved issues from your transition,'” she said.

While her abusive household and other life factors certainly added to her depression—the first symptom people with Bipolar II typically suffer from—Rodríguez-Roldán knew she was transgender at age 15 and began the process of transitioning at age 17. Bipolar disorder, meanwhile, is most often diagnosed in a person’s early 20s, making the conflation rather obvious. She acknowledges the privilege of having good insurance and not being low-income, which meant she could choose a different doctor.

“It was also in an outpatient setting, so I was able to nod along, pay the copay, get out of there and never come back,” she said. “It was not inside a hospital where they can use that as an excuse to keep me.”

The fear of having freedom and other rights stripped away came up repeatedly in a Twitter chat last month led by the Task Force to spread the word about HR 2646. More than 350 people participated, sharing their experiences and asking people to oppose Murphy’s bill.

In the meantime, Sen. Lamar Alexander (R-TN) has introduced the “Mental Health Reform Act of 2016” (SB 2680) which some supporters of HR 2646 are calling a companion bill. It has yet to be voted on.

Alexander’s bill has more real reform embedded in its language, shifting the focus from empowering families and medical personnel to funding prevention and community-based support services and programs. The U.S. Secretary of Health and Human Services would be tasked with evaluating existing programs for their effectiveness in handling co-current disorders (e.g., substance abuse and mental illness); reducing homelessness and incarceration of people with substance abuse and/or mental disorders; and providing recommendations on improving current community-based care.

Harris, with Real MH Change, considers Alexander’s bill an imperfect improvement over the Murphy legislation.

“Both of [the bills] have far too much emphasis on rolling back the clock, promoting institutionalization, and not enough of a preventive approach or a trauma-informed approach,” Harris said. “What they share in common is this trope of ‘comprehensive mental health reform.’ Of course the system is completely messed up. Comprehensive reform is needed, but for those of us who have lived through it, it’s not just ‘any change is good.'”

Harris and Rodríguez-Roldán both acknowledged that many of the HR 2646 co-sponsors and supporters in Congress have good intentions; those legislators are trusting Murphy’s professional background and are eager to make some kind of change. In doing so, the voices of those who are affected by the laws—those asking for more funding toward community-based and patient-centric care—are being sidelined.

“What is driving the change is going to influence what the change looks like. Right now, change is driven by fear and paternalism,” said Harris. “It’s not change at any cost.”

Analysis Law and Policy

How Conservatives Are Using a 2012 Supreme Court Health-Care Case to Challenge Trans Rights

Jessica Mason Pieklo

Buried in the legal complaint challenging the Obama administration's recent agency actions on transgender rights is a legal claim designed to appeal directly to conservative judges.

Back in 2012, when conservatives’ first challenge to the Affordable Care Act (ACA) landed before the U.S. Supreme Court, the Court ruled that much of the health-care reform law was constitutional. But buried in that opinion was a poison pill—one with which conservatives are trying to kill off the Obama administration’s recent actions to protect transgender rights.

Eleven states and their officials sued the Obama administration in Texas federal court on Wednesday over its recent federal guidance advising public schools to allow transgender students to use bathrooms that align with their gender identity. Much of the joint lawsuit argues, essentially, that the Obama administration is illegally trying to rewrite federal civil rights statutes in a series of administrative agency actions called “guidances.” Such claims are effectively baseless, as Rewire Senior Legal Analyst Imani Gandy has already done an excellent job demonstrating here and here.

But still, buried in the lawsuit filed Wednesday is one additional claim that could prove irresistible for a conservative federal court judge in Texas—namely, District Judge Reed O’Connor, a 2007 President George W. Bush appointee who is expected to hear the case.

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The bulk of the Obama administration’s guidance lets some schools and employers know that it is the official, legal position that current civil rights statutes like Title VII and Title IX protect transgender students from discrimination on the basis of their sex. Should those entities instate policies that conflict with that interpretation, then they risk a loss of federal funding. Conservatives argue that threat of funding loss is unconstitutional. And they point to National Federation of Independent Businesses (NFIB) v. Sebelius, the decision that largely upheld the Affordable Care Act, for support.

“The threatened loss of over 10 percent of a State’s overall budget is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion,” the Court wrote in NFIB. “[T]he expansion accomplishes a shift in kind, not merely degree,” the Court continued. “The original program was designed to cover medical services for particular categories of vulnerable individuals. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level.” The effect of that decision was to prevent the Obama administration from using that funding as the carrot to induce all states into setting up their own health-care exchanges and expanding Medicaid.

That question—whether the Obama administration’s guidance in the reading of Title VII and Title IX is a fundamental shift, or more of a shift in degree—is exactly what conservatives are pressing a federal district court judge to answer.

“By placing in jeopardy a substantial percentage of Plaintiffs’ budgets if they refuse to comply with the new rules, regulations, guidance and interpretations of Defendants, Defendants have left Plaintiffs no real choice but to acquiesce in such policy,” the complaint challenging the Obama administration guidance states.

That, right there, is the same “coercion” argument advanced and accepted by the Supreme Court in 2012.

The lawsuit challenging the transgender guidances borrows heavily from the language in NFIB‘s opinion, including quoting that the federal government “puts a gun to the head” of states when it makes the receipt of federal dollars dependent on doing or not doing a particular action.

But the thing is, the Obama administration’s guidance on transgender rights and its notice that certain federal funds hinge on compliance is not at all like the fight in NFIB. This is because of one key, compelling reason: In NFIB, states were not required to buy into the Affordable Care Act. The law was just written in a way that was designed to entice them into doing so.

That is not the case with the Obama administration’s guidance on transgender rights. Schools and federal agencies—in other words, recipients of federal funds—are already required to comply with federal law. Should they not, whether it be in the form of implementing discriminatory bathroom policies or refusing to hire an employee based on their gender identity, those federal funds recipients risk losing those federal dollars.

Think of it this way. The law describes the kind of “spending” relationship between the states and the federal government like it’s a contract. The federal government “offers” the states money to support certain state programs, whether they be public schools or health-care centers. But that “offer” has conditions, and one of those conditions is that the state recipient of those dollars obeys federal law. And in this case, obeying federal law means allowing transgender people to use the bathroom that aligns with their identity.

But the challengers argue that, effectively, the Obama administration has changed the terms of their contract; they say Title VII and IX were never intended to protect transgender students, and instead demand the laws require sex-segregated facilities like bathrooms and locker rooms.

“Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights,” the complaint states.

The argument advanced by conservatives that federal agencies lack the power to interpret the statutes they are charged with enforcing is disingenuous at best. But it’s also an argument conservative federal courts have been willing to accept in the past, so it’s entirely likely a conservative judge would accept that argument here too. Which is exactly why of the 11 states joined in the lawsuit, conservatives chose Texas—and the ultra-conservative Fifth Circuit Court of Appeals—to bring this claim.

There are a lot of unanswered questions regarding the legitimacy of Wednesday’s lawsuit. It’s not entirely clear the plaintiffs have standing to bring this suit in the first place, and that’s not even touching on all the legal deficiencies Gandy already mentioned. But if we’ve learned anything from the health-care reform litigation, it’s that conservatives care very little if the facts and law are on their side, so long as at least one federal court is willing to enable their attacks on policies they lack the legislative and political power to block in the first place.