In December 2016, a Texas court issued a nationwide preliminary injunction that decided universities and other institutions are no longer required to comply with the nondiscrimination provisions for transgender people in the Affordable Care Act (ACA). These provisions ensured that any health program or activity funded by the federal government could not deny transgender people vital services like gender-affirming surgeries and hormone replacement therapy.
The Texas court’s action has already led to serious consequences. In the wake of the ruling, the University of Arkansas quickly rescinded trans-related health benefits that it had previously extended to employees and their loved ones. In doing so, it is blocking access to critical transition-related care.
At this point, the future of the ACA, and the nondiscrimination provisions within it, remains uncertain. Texas court’s “pause” on the protections will remain in place while the courts handle a larger case against the federal government around transgender health care. In the meantime, trans people have been left vulnerable to yet another legal loophole. The University of Arkansas could be the first of many to exploit this injunction as justification for no longer covering trans-related care—care that is necessary for many transgender people’s mental and physical health, but prohibitively inaccessible and expensive for most without these insurance benefits.
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“I Was Devastated”
Teri Wright—a trans woman whose insurance was covered through her wife’s employer, the University of Arkansas—was already making plans with a surgeon for her gender-affirming surgery when she received the news that she would no longer have coverage.
“Anything that has to do with gender dysphoria will be declined,” Wright explained in an interview with Rewire. “To me, that’s clearly discrimination.”
While the university had previously told Wright that her surgery would be covered, the situation rapidly reversed in the wake of the nationwide injunction. All in all, the school only covered trans-related health benefits for about two months.
“I was devastated,” Wright said. The University of Arkansas, she said, was “violating my rights … you would think [it] would be more forward-thinking.”
For many transgender people like Wright, accessing these interventions before the ACA was a struggle. Without legal protections, insurance companies were not required to cover hormones or surgery for trans people—leaving them digging deep into their pockets to cover the cost (which can be upwards of $100,000), starting crowdfunding campaigns online, or going without these life-saving interventions altogether.
And because gender dysphoria was also considered a “pre-existing condition,” trans people were routinely denied insurance altogether, a terrifying reality on the horizon as the ACA is still under attack.
A Community Fights Back
Recognizing the importance of this moment, students and alumni at the University of Arkansas have already pushed back—including with numerous protests—against the university’s coverage policy.
Paz Galupo, a University of Arkansas alum who is now a professor of psychology at Towson University, has started a Change.org petition to raise awareness about the unjust policy and what it means for the trans community at large.
“Among a population with a suicide rate of nearly nine times that of the general population, receiving proper health–care treatments can literally be a matter of life or death,” she explained in an interview with Rewire.
According to Galupo, the university appeared to announce the policy change on a “need to know” basis, with many individuals only finding out when media outlets first broke the story.
“That the university wasn’t transparent with the entire campus [and] system community signals to me that they know their decision is out of line and that they were hoping to keep people from knowing about it,” Galupo argued.
While the policy now affects staff, faculty, and their dependents at University of Arkansas, community members are concerned that the consequences could be far-reaching.
Shannon Hart, president of the LGBTQ+ student organization PRIDE, noted that this could affect all students at the university in the near future. “Student health insurance policies cannot be changed until 2018 as they are under contract,” she said, but “we expect to see a similar decision made then, and are not going to let it get that far.”
Hart claimed that getting the university to comply with the ACA in the first place already involved intense lobbying efforts on the part of the community. “It is clear it was not a priority, and that they were only willing to provide equal care regardless of gender identity when forced to by law,” she said.
In a statement shared with Rewire, the University of Arkansas System Office asserted:
The frequent changes and uncertainty of the ACA regulations are challenging for both health plans and for plan participants, particularly when dealing with coverage issues such as gender dysphoria which involve a long-term plan of treatment. Given the most current court ruling, the University will suspend gender dysphoria coverage pending the final legal outcome of the injunction or further clarification of the ACA coverage guidelines.
Without the additional legal protections available under the ACA, institutions like the University of Arkansas system are no longer compelled to protect transgender people, and there is little known recourse through which trans people can advocate for themselves. This is especially evident given that the Trump administration continues to roll back support for trans people, including withdrawing federal agency guidelines directing schools to recognize trans student rights under Title IX of the Education Amendments of 1972. Presumably, this will also extend to withdrawing guidelines around Title VII of the Civil Rights Act of 1964, which bans discrimination in the workplace.
Though the situation at the University of Arkansas is unjust, it is not an anomaly. Diminishing protections like these, and the campuses that exploit them, are a frightening indication of what lies ahead for the transgender rights movement. Under a Trump administration, it’s not yet clear exactly how many loopholes will now appear at universities, in places of work, or in health care—or just how many transgender people will be harmed as a result.
Britni de la Cretaz contributed to this reporting.