Analysis Health Systems

The Problem With Obamacare for Some Transgender Policyholders

Tara Murtha

Despite the gender-identity nondiscrimination provision of the Affordable Care Act, doctors say some insurance companies are rejecting coverage of basic preventive care.

There’s no doubt that the Affordable Care Act (ACA) benefits transgender people, who have been historically marginalized in the mainstream health-care system through rampant discrimination and a disproportionate likelihood of living in poverty. And while having insurance is key to improving health outcomes, Rewire found anecdotal evidence suggesting that a subset of new policyholders may still encounter difficulty getting basic preventive care and treatment for sex-specific diseases under the ACA.

First, the good news: The ACA bans discrimination that has prevented many transgender people from having health insurance coverage. The Department of Health and Human Services has explicitly stated that the civil rights provision in the ACA prohibits discrimination “based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.”

The problem is that interpreting what is and isn’t discrimination has been so far left to the states.

“The question is, what is gender identity nondiscrimination?” said Kellan Baker, associate director of the LGBT Research and Communications Project at the Center for American Progress. “Does it mean you can’t hang up the phone on a trans person? Does it mean that you can’t cover their cervical cancer treatments unless [a policyholder is] listed female? Does it mean that transition care has to be covered?”

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Much of the conversation around gender-identity nondiscrimination and the ACA has centered on whether or not insurance companies have to cover transition-related care. So far, the answer depends on where you live: Only six states and the District of Columbia have formally issued bulletins clarifying that they are interpreting the gender-identity nondiscrimination provision to mean coverage of transition-related care.

California, Colorado, Oregon, Vermont, and Connecticut have all issued formal statements, according to a spokesperson for Gay and Lesbian Advocates and Defenders (GLAD). Maryland has issued what advocates are calling a “partial statement,” meaning the Maryland Insurance Commission has reaffirmed nondiscrimination while stating “the exclusion should be narrowly applied to items and services that are directly related to the gender reassignment process.”

The District of Columbia just issued a bulletin last week.

“I don’t think people understand almost every insurance policy issued, unless it’s a state that issued a bulletin, excludes all transition treatment,” said Zack Paakkonen, staff attorney at GLAD.

Historically, insurance companies have leveraged the exclusion of transition-related care as an opportunity to further discriminate against transgender policyholders. Advocates say insurers have used the exclusion to justify denying transgender policyholders coverage of not only hormone replacement therapy and transition-related surgery, but also mental health services and treatment for physical injuries that have nothing to do with gender at all, such as a broken arm.

The systemic marginalization of trans people has resulted in creating a population suffering profound health disparities that are exacerbated by a discriminatory health-care system.

Trans people suffer much higher rates HIV infection and drug and alcohol abuse. In the biggest survey of trans people conducted to date, 61 percent reported being victims of physical assault, while 64 percent reported being victims of sexual assault. Forty-one percent of respondents reported that they had attempted suicide, compared to 1.6 percent of the general population. What’s more, transgender people of color fare worse than white transgender people across the board.

So there’s another issue that needs to be clarified: In states that don’t issue a bulletin, does that mean insurance companies can deny transgender policyholders basic preventive care that doesn’t match the gender box checked on their policy application?

Baker from the Center for American Progress says this denial of preventive care is a form of discrimination that ACA was in part intended to outlaw.

“There is a lot of discussion around what kind of transition-related care needs to be covered,” said Baker. “But when it comes to preventative services or services for conditions such as cancer that are more or less traditionally gendered, that is something that I would see very strongly as falling under the very clear and U.S.-wide nondiscrimination protections of the ACA [also].”

But, thanks in part to a loophole in the process of signing up for coverage through the ACA, doctors are still seeing it happen.

The Loophole

Transgender people were denied preventive care long before the ACA, but the fact that these denials are still happening is significant since health reform was intended in part to ban discrimination. It’s also significant, though, because the problem may disproportionately affect one subset of trans policyholders.

Under the ACA, most single people earning less than 400 percent of the federal poverty line per year qualify for advanced premium tax credits to help offset the cost of insurance. (This is true for qualified applicants who enroll until March 31.) To obtain the subsidy, applicants must sign up for insurance through the online state marketplace. Here’s the problem: To funnel the subsidy, the gender marker on the health insurance policy must match the gender marker on their social security record associated with their social security card.

So now transgender people who have already gone through the trouble, and expense, of transitioning all of their identity paperwork to reflect their gender expression, and who purchase a subsidized policy through the state exchange, are the population most likely to find preventive care or sex-specific treatment rejected by their insurance company.

For example, a transgender man whose social security card and health insurance policy reflects that he is a man may be denied coverage of routine health care like a Pap test. Worse, he could be denied treatment of a sex-specific disease such as cervical cancer. (Doctors say mammograms are less of a problem, since men already get screened for breast cancer.)

“It’s happening a lot more now because so many more people have insurance,” says Dr. Robert Winn, medical director of Mazzoni Center in Philadelphia, the city’s only community health center focused on the needs of the LGBT population.

Ironically, at a trans-friendly community health center like Mazzoni, it could be easier to get a transgender man a Pap test when he didn’t have insurance. “Before, if you were a trans guy coming in for a Pap smear, it could be covered under our family planning grant,” said Winn.

But now that he’s billing insurance companies more often, it’s getting more complicated. “Now, a trans man will come in and get their annual gyn[ecological] exam, but it might get rejected because they’ll say, ‘This is a male and this diagnosis and the procedure code is female, so were not going to pay for it,’” he said.

With health reform still so new, Winn is just starting to navigate these issues. So far, he has been able to find “workarounds.”

But trans patients certainly can’t count on finding a culturally competent doctor like Winn who is dedicated to advocating on their behalf. With stories like the doctor who didn’t even bother telling his trans patient he had breast cancer (he then told the patient he had a “real problem” with him), it’s little wonder 28 percent of trans people have to postpone medical care due to discrimination.

“If [a transgender patient goes] to a regular doctor, likely they will just get a bill with a claim that’s rejected and likely won’t have any recourse,” said Winn.

If workarounds don’t work, the result can be fatal.

Winn had a patient, a trans man, who was suffering a medical problem that required examination by transvaginal ultrasound.

“We really needed to get a look at his uterus and ovaries, and he has insurance. And he’s male on insurance, on everything. And to be honest, we didn’t even think about it. We did the procedure and I billed it off,” Winn told Rewire. “And it got rejected, saying, ‘This is a male. You can’t do a transvaginal ultraound on a male.’”

Winn is still working to resolve the situation.

“This is good litmus test,” he said. “[Is the insurance company] really going to say that [they’re] not going to cover someone with a procedure that [they] cover who has these [body] parts?”

Despite the gender-identity nondiscrimination provision, the answer seems to be: sometimes.

At Capitol Hill Medical, a medical practice serving LGBT patients in Seattle, Dr. Jessica Rongisch says she has seen insurance companies reject screenings for prostate cancer. “I have had those rejected because the gender marker is female,” said Rongisch.

Finn Brigham, director of special populations services at the Callen-Lorde Community Health Center in New York City, says it’s too soon to tell if this procedural glitch will cause an increase in rejections of preventive treatments for trans policyholders.

“It’s a bit complicated. It remains to be seen how [the ACA] will play out with the gender marker issue, but we’ve definitely seen that in the past it really comes down to a case-by-case basis,” said Brigham. “Which is obviously not an ideal situation.”

Finding the Right Coverage

Katie Keith of Out2Enroll, a coalition of organizations dedicated to helping LGBT people sign up for health insurance, says that she fields requests “all day” from trans people trying to figure out what plan will work best for them.

“We get emails from states across the country asking ‘Which plan do I enroll in? Which plan doesn’t have the exclusion?’” said Keith. “It’s hard to answer.”

Keith says there’s no uniform way to examine the fine print of each plan; different companies use different exclusionary language.

The language varies—some deny coverage for “sex assignment,” some say “gender transition,” and some say “treatment related to gender transition,” depending on the particular insurance policy and company—but the remaining states all allow insurance companies to exclude coverage of transition-related care.

“We’re trying to document how hard is it to even get this information, so we’ve had people in Tennessee sending us all their emails with insurance companies trying to get to the bottom of whether there’s an exclusion or not,” said Keith.

Advocates hope that ultimately the Department of Health and Human Services will clarify their position on transition-related care so that quality of care is not a matter of geography. (Calls to the Department of Health and Human Services to clarify their position were not returned by publication time.) In the meantime, the burden to clarify what is and is not covered may fall on a person denied coverage who is willing to file appeals to the company, and then if necessary, file a lawsuit to push the courts to interpret the nondiscrimination provision.

Winn told Rewire another story. A patient of his is a trans man with a trans man partner. The patient’s partner was diagnosed with a case of aggressive cervical cancer, and was initially denied treatment because of his gender marker. Frightened, the patient—who had already gone through the complicated and expensive process of changing all of his paperwork to male—changed his gender marker back to female as a preventive measure, because he feared the repercussions of a delay or rejection of treatment if something went wrong with his cervix too.

Now that his social security record and the insurance company identify him as female, though, the insurance company may reject covering the testosterone he takes.

“So basically,” said Winn, “you can’t win one way or another.”

Transgender patients who believe they are receiving discriminatory treatment that violates the civil rights provision are encouraged to file complaints with the Office for Civil Rights.

Culture & Conversation Human Rights

How One Couple Is Putting Bathroom Safety on the Map

Ryan Thomas

Like the Negro Motorist Green Book, the Safe Bathrooms map is not so much a novelty but a vital resource to protect the safety of its users at a time when history is repeating itself in a way that is marginalizing an already vulnerable population.

This piece was published in collaboration with Generation Progress.

North Carolina Gov. Pat McCrory (R) seems to think it’s a governor’s duty to classify which men and women are the “real” ones and which aren’t. Because of this, he has put the lives of all of North Carolina’s trans residents at risk by signing HB 2 into law.

Last week state legislators proposed changes to HB 2, but those changes do nothing to mitigate an unabashed blastoma of transphobia that is now lawfully spreading at a vicious pace.

In response to HB 2, droves of businesses and musicians have boycotted the state in hopes of stopping this unmitigated discrimination toward trans people from moving any further.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

People have banded together to show their support for the trans community, and businesses across the state and country have declared themselves safe havens for trans-identifying individuals by submitting to the Safe Bathrooms map.

The map’s creators—River William Luck, a trans community activist, and his partner (and as of recently, fiancée), web design specialist Emily Rae Waggoner—both live in Boston, but the fight to protect trans rights affects them on a deeply personal level: They’re both from North Carolina.

When HB 2 was signed into law, Luck says, “I was on guard, because I’ve been told I’m in the wrong bathroom my entire life as a masculine-presenting female for more than 30 years.”

Now his home state has become one big ”Do Not Enter” sign for him and his friends still there. Luck’s reaction, however, was not one of helplessness. His instinct, which he learned to follow after years of experiencing and bearing witness to bigotry, was to bind the community and help strengthen it through tangible acts of love and support.

One Reddit commenter likened the map to the Negro Motorist Green Book of the 1930s to 1960s, which was published to help Black travelers in the United States find safe passage in times when racial persecution was legal. Like the Negro Motorist Green Book, the bathrooms’ map is not so much a novelty but a vital resource to protect the safety of its users at a time when history is repeating itself in a way that is marginalizing an already vulnerable population.

Before the Safe Bathrooms map, Luck started mailing hundreds of buttons from the #IllGoWithYou campaign to friends and family back home. The #IllGoWithYou campaign was developed as a means for allies to offer solidarity and protection to transgender and non-binary individuals. By wearing a button, participants pledge to stand up and speak up during instances of harassment and physical endangerment.

“This is my way of paying it forward,” Luck says. “What I’ve done is buy a shit ton of buttons and if someone wants one, I send them one. If they can’t afford it, I send them one. If they want to know more about it, I write them a note and ask people to pick up more.”

His reasoning is simple: “I would have given anything to have seen one of these when I was in North Carolina.”

Luck’s meaningful gestures extends to the clothes he wears, as he frequently can be found sporting a t-shirt that says “No Hate in Our State” or a tank top with the words “Proud Transman” printed in bold. River models several lines of what he refers to as “activism wear,” as a product ambassador a variety of labels including a Greensboro, North Carolina-based company called Deconstructing Gender, and another called Proud Animals.

It’s actually the former that planted the seed for the Safe Bathrooms map, as Luck and Waggoner were inspired by the photos of gender-neutral bathrooms posted on the company’s Instagram account. While the two were talking to Deconstructing Gender’s founder and CEO Avery Dickerson, who was transitioning at the time, Waggoner said, “Wouldn’t it be nice if there was a map of safe bathrooms where trans people could go without hassle?”

And so with Waggoner’s web design expertise and Luck’s social media skills, the Safe Bathrooms map came to life as a child of both necessity and wishful thinking. As they built it, the people came in droves: businesses, affected community members, and media alike.

With over 200 businesses included to date, the two have put together a functioning survival guide for trans residents and travelers who also possess bladders.

Waggoner shared one email with Rewire that she received from a man who owns an architecture firm in Maine, who requested to have his business be included on the map:

I, therefore this business, stand for equality, acceptance, and kindness to all. As a gay man, and one living with HIV for 30 years now, I know too well that indifference to discrimination, condoned cruelty, and legalized oppression are terminal illnesses. These behaviors killed the dreams, and injured the very souls of our young, and further darkened the roads the rest of us continue to travel. It must stop.

To be included on the Safe Bathrooms map, businesses need simply fill out this form and verify their trans-friendliness with a photo of a gender-neutral bathroom placard or other clear form of expression. Upon approval, businesses are represented on the map as a roll of toilet paper. For those lacking, the Safe Bathrooms website goes one step further and shows businesses where they can obtain gender-neutral bathroom signs for their private spaces.

Waggoner and Luck know personally how useful such a map can be. Waggoner says she’s had to stake out bathrooms to make sure the coast is clear, like a Secret Service member. One time, she says, “We were in a restaurant waiting to use the bathroom. We could feel the tension in the air and feel the stares. And it became very uncomfortable because people at the bar were openly just watching which bathroom River was going to go into. And we feared for his safety and our safety.”

Luck continues, “We ended up having to leave and go to a friend’s house so I could use the bathroom and detoured the whole evening plans so I could pee safe.”

Clearly the problem won’t end once HB 2 and other anti-trans laws like it are repealed. The attitudes that brought these policies into being still exist and must be dealt with. But, as Luck attests, there is a definite support system of love and acceptance in North Carolina. He found it in Greensboro as a music teacher at New Garden Friends School, a Quaker school. “They were so open and embraced diversity that I could be an out lesbian,” says Luck.

Greensboro has very distinct pockets of support, which is where a lot of the safe bathrooms appear on the map. But even in places less supportive deeper south, Waggoner notes there are still good friends to be found: “It’s been cool to see some of the small-business owners in some of the more rural towns popping up. Like in Salisbury, North Carolina. It’s really brave of them to do that—to be the first in their town to speak up and say something, and be the first on the map.”

The outpouring of support may be having an effect: University of North Carolina President Margaret Spellings recently gave a statement saying that she would not enforce HB 2 or change any of the school’s current provisions. Spellings did originally plan to enforce HB 2. It wasn’t until U.S. Attorney General Loretta Lynch declared the state in violation of civil rights and threatened to cut up to $4.8 billion in federal funding to the school that Spellings changed her position (and McCrory sued the federal government).

Before Spellings changed her decision, students from various on-campus alliance groups held loud protests outside of buildings in which she was attending meetings, in efforts to sway her judgment. Students at schools across the state affected by the law are making their opposition known.

On a K-12 level, there are organizational efforts through nonprofit Gay-Straight Alliance groups such as Time Out Youth, which offers resources and aid to LGBTQ minors living in inclusive North Carolina and South Carolina school districts. Its website lists student rights, including the rights to gender expression, confidentiality, and respective pronoun usage, as well the right to attend school functions and report on instances of bullying (which state public schools are required by law to deal with).

Luck has spent most of his life traveling against the grain of society’s intolerance–from a misunderstood kid living with his grandparents, to a determined and proud trans man working hard to end the ritual persecution of his fellow person.

Growing up in North Carolina in a conservative Baptist household, Luck remembers being called a “tomboy” and being told “not to act like a boy” as young as 3 years old. Luck attended and was eventually kicked out of a Christian high school for identifying as a “lesbian” (this was before he identified as trans). Luck says he’s been working steadily since he was 13, when his first job was at a Chick-fil-A.

In college, Luck had a psychology professor who taught that homosexuality was a disorder.

“I remember sitting in the class waiting for someone to say something, because I didn’t want to say anything,” Luck says.

After going to the head of the psych department, and then the head of the school, Luck managed to get the homophobic lesson pulled from the syllabus.

“That was a time in my life where I realized if I didn’t say something, no one would. And so I had to. That’s when my activism really started,” Luck says.

Coming to Boston for grad school, Luck found his new home to be much less critical of his outward gender appearance, and found true love in his partner. Luck says Waggoner accepted and supported his transition every step of the way—from coming out (a second time) as transgender, to life-affirming surgeries and ongoing treatments, to his sweeping romantic proposal involving a trip to New York City, a rare Harry Potter book, and a cleverly inserted engagement ring.

Luck and Waggoner hope to expand upon all the ground they’ve covered in North Carolina and take their Safe Bathrooms map to national and international levels.

Luck says he wants to ultimately see the whole state of North Carolina become “a giant roll of toilet paper.”

“We’d [also] love for it to grow to be an international thing, especially given all the anti-LGBT sentiments in other countries. Because we’re everywhere. And everybody needs to have that access,” he says.

The two do have an app in the works to accompany their Safe Bathrooms map, which they hope to give a Yelp-like interface to allow community members to find safe bathrooms on the go, and review and share their own individual bathroom experiences.

All of this work points to a very simple goal: to make it so trans people don’t have to endure daily humiliation exercises to find a toilet that comes with no strings attached.

“The bottom line is … I’m a human being who happens to be trans. But before I would label myself trans, I would say I’m an activist, an actor, a student, an artist, a musician, a good partner, a good relative … All these other qualities that define me that have so much more weight,” says Luck.

To show support for the trans community and be included on the Safe Bathrooms map, visit SafeBathrooms.club.

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.”

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

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.”