Trump reverses medical discrimination protections for trans people, while SCOTUS rules employers cannot fire workers for being gay or trans.

Story Transcript

This is a rush transcript and may contain errors. It will be updated.

Kim Brown: Welcome to The Real News, I’m Kim Brown. June is Pride Month where the achievements and challenges of gay and trans people are celebrated and acknowledged. And Pride Month 2020 has been a legal rollercoaster for LGBTQ folks here in the US. On Friday, June 12th, the Trump administration finalized a rule essentially stripping away civil rights for trans people clearing the way for legal discrimination against transgender folks seeking medical care. And in the same week, the Supreme Court issued a decision on the Bostock versus Clayton County case ruling in favor of the plaintiffs that gender identity or sexual orientation isn’t grounds for termination by your employer.

And to discuss this and several other issues that are affecting the gay and trans community, we are joined today with Bre Kidman. Bre is an attorney who is currently running for the Democratic nomination for Senator in Maine to challenge Republican incumbent, Susan Collins. The primary is set for July 14th. Bre is joining us today from Maine. Thank you so much for being here, Bre.

Bre Kidman: Thanks for having me. It’s great to be back.

Kim Brown: First and foremost, let’s start with what the Trump administration decided a week ago, Friday, June 12th. They basically overturned protections that were set forth by the Obama administration in the Affordable Care Act, which said legally, people could not be denied access to healthcare on the basis of, quote, “Race, color, national origin, sex, age, or disability in certain health programs and activities.” Now the Obama administration went on to further clarify this by saying that sex is to include gender identity as male, female, neither, or a combination of male and female.

Bre, I wanted to get your take on this because it’s so disturbing that the Trump administration authorized this legal discrimination against trans people in the healthcare field generally. But the fact that this is happening during the midst of a pandemic is cool. There’s no other way to describe it. What was your reaction to what the Trump administration did in effect overturning these protections?

Bre Kidman: Well, my initial reaction was to have my heart sink into my gut, right? Because as a trans person, it’s terrifying to see that the Trump administration has such bare animus for us that in the midst of a pandemic, they would fight to take our healthcare protections away. As we know from the 2015 U.S. Trans Survey, which is the biggest collection that we have for data on trans people, trans people experienced medical discrimination at radically higher rates than I think any other group where trans people get turned away from the doctor at extraordinarily high rates, not just for things like trans related care, like surgery and hormones, but for basic medical needs just because they’re trans.

And so Trump making this kind of unilateral decision basically says, yeah, that’s fine. We’re okay with that. And the good news is that with the definition of sex, including gender identity in many contexts, I think it doesn’t foreclose the idea that someone would bring suit for a healthcare related claim, but it’s essentially a signal from the executive branch saying, well, we’re going to try and stop you from doing that. So it’s sickening.

Kim Brown: I wanted to read a quote to you from a member of the Trump team from the Health and Human Services Department, where they said, quote, “We’re going back to the plain meaning of these terms, which is based on biological sex.” Tell us why this is wrongheaded and why it is possibly going to cost people their lives if they are not able to get access to healthcare, or if they are denied healthcare services from providers.

Bre Kidman: Traditionally is an interesting word because for quite some time now, based on Pricewaterhouse and other decisions, discrimination on the basis of sex has legally meant discrimination based on characteristics that one associates with sex assigned at birth. And so while Trump is certainly thinking about the meaning of sex meaning male or female based on your genitals, what you’re assigned at birth, there are years of legal precedent saying that that’s not what sex discrimination is, or that’s not all sex discrimination is because sex discrimination includes even cisgender or heterosexual women who dress in a masculine fashion, if they’re discriminated based on the way that they dress if they don’t present femininely enough, that’s sex discrimination.

So there’s no reason that that shouldn’t include trans people who may present in a way that differs from their biological sex assigned at birth, but it’s still sex discrimination because you’re assuming that they would behave or act or dress or present a certain way based on the sex assigned at birth that is assumed to be the correct sex. I mean, sex is a spectrum too. I don’t think we have time to get into that. And so the same is true of all other members of the LGBTQIA+ community. Essentially, the argument that was made in the Bostock cases and in Pricewaterhouse and in other cases before it, and the argument that the Supreme Court has held up is that if you were discriminating because you believe that people who are assigned one gender at birth, male, female should behave a certain way because they are male or female.

Whether that means men should date women, men should be masculine, men should be men, and I say that meaning people who are assigned men, that’s still discrimination based on sex, that’s discrimination based on the sex assigned at birth. And so it’s wrongheaded, it doesn’t make sense because these characteristics are all deviations from, and I say deviations that has connotation to, but deviations from the assumption of what someone born with a certain set of genitals would do. And that’s particularly harmful to trans people, but also to LGBTQIA people all over the spectrum. Because essentially what the Trump administration is saying, well, if you don’t act like what your genitals were when you were born, we don’t care if people treat you fairly.

That’s a tough one to swallow. And frankly, I don’t think it will hold up in the courts when, I say when it is challenged.

Kim Brown: Without a doubt, because it seems that suing is probably going to be the only legal remedy here unless Trump loses in November and a new president comes in and reverses this rule. I want to read a bit from a statement released from Roger Severino, who is the director of the Office for Civil Rights in the Department for Health and Human Services. And what this person basically goes on to say is that there is confusion in the medical field about how to treat trans gender people and that the elimination of these legal protections in the Affordable Care Act will in effect, eliminate this confusion.

Now, just to be clear, Roger Severino as reported by NPR, came to the Trump administration from The Heritage Foundation, he’s uber religious, very much man with woman type of life outlook on the issue of gender identity. This is extremely scary, I would imagine for people who are trans and gay also for the simple fact that now the only way to correct this legal discrimination is to fight it in the courts and that can also be a lengthy process. It can vary from state to state. It may not come in the form of a federal decision initially. How do you see this going forward? You did mention court as a remedy.

Bre Kidman: I haven’t really thought through legally or talked with experts on this, but it’s possible that the decision as applied to employment will trickle down to healthcare through another means. I’m not sure what that means would be because it is explicitly applied to employment. But it’s a definition from the Supreme Court of a term that is used across different legal arenas. I think the idea that doctors have a difficult time treating trans people is a bad faith argument. Trans people are human beings. Human beings should be able to get medical care regardless of what their hormonal balance is.

And there are people across all different realms of gender identity, all different realms of sex. There’re intersex people, there are people with hormonal differences all the way across the gender and identity spectrum. And if doctors don’t have problems treating people who identify as cis-gender with different hormonal balances, there shouldn’t be a difference when treating trans people who are receiving hormone replacement therapy or trans people who’ve had surgery. Trans people don’t say that they can’t, not trans people, doctors don’t say that they can’t treat people who’ve had extensive plastic surgery for cosmetic reasons.

So I don’t really understand why, but I do understand why, it’s discrimination. But I think that it’s in bad faith to argue that it’s not possible to treat people who are medically transitioning or people who aren’t medically transitioning and who just, not just, but people who identify without undergoing hormone therapy or without undergoing other medical procedures.

Kim Brown: Let’s move along to the Supreme Court decision ruling in favor of the plaintiffs in Bostock versus Clayton County. This is an amalgamation not just of that case, but two other related cases. And the Supreme Court found that gender identity or sexual orientation is not grounds for your employer to fire you. I saw a lot of actually mixed reactions about this decision on social media. Obviously those who are very happy that that civil rights protections extend now legally to transgender folks. But at the same time, I saw people acknowledging first and foremostly sometimes the rampant discrimination in hiring of transgender people to begin with.

So if you’re on your job and you’re transgender, it’s good to know that now legally your employer can’t fire you. But if you’re transgender, it’s hard to even get in the door to get a job. Talk to me about your reaction to the Bostock decision.

Bre Kidman: This is not a crural for employment discrimination for trans people. It does give us a legal footing to stand on, but it won’t solve the problem of getting trans people in the door. And frankly, people across all lines of marginalization know that if they don’t fire you explicitly for being trans, they might fire you for being five minutes late one day. There’s any number of excuses that an employer can come up with for firing someone to make sure that it’s not a prohibited purpose on paper. And that practice isn’t solved by a ruling like this. A ruling like this, what it does do is say, well, no, it actually allows you to make the argument that, well, no, actually it was transgender discrimination and that’s not allowed.

Previously, that kind of argument would be difficult to make where there wasn’t an explicit protection. And now that there isn’t explicit protection, it’s a leg to stand on. And it’s, like I said, it’s certainly not a crural, it’s a start towards being able to address that issue head on.

Kim Brown: I wanted to talk about Pride Month 2020, and I believe, are we in the 50th anniversary of the Stonewall uprisings where gay people in New York City were targeted by New York City police department and they got fed up and made it known in the form of gathering and uprising that they were tired of being targeted and discriminated and harassed and violated by the police. And we’re seeing now many movements across the country where thousands of people are taking to the streets in objection to police brutality and calling now more for police accountability. But police harassment and police brutality is very much an issue that affects the gay and trans community.

Talk to me about how this intersection comes with gay and trans folks who have been leading the way on civil rights really on a myriad of issues, but specifically as it relates to police brutality in this moment.

Bre Kidman: Trans women of color were leaders at the Stonewall uprising. Trans women of color still face the steepest rates of murder, of police brutality, of discrimination across the board of any group that I can think of. Trans women of color have really been out fighting the fight and really not seeing many of the rewards. And so we see that now especially in, it’s tough to talk about this, in movements where we’re talking about black liberation, where we’re talking about police discrimination, trans women getting beat up at those demonstrations. There have been, I think at least three trans murders over the course of these last few weeks where this has been going on.
Having to explicitly say that black trans lives matter too, I think it’s a challenging intersection because it’s a big tent. Racial injustice is a big tent and LGBTQ justice is a somewhat smaller tent within that tent. And so we’re at a point now where we’re trying to bring everybody on board with collective liberation for everybody. And certainly, I’m not in a place to say what that looks like or where it comes from. I’m here to listen to movement leaders and amplify that message. But it’s interesting to watch that unfold. I think the demonstrations that I’ve seen, there’s been some trans pride, some black trans pride.

There’s been demonstrations alongside or with, or in addition to the kind of larger groups of demonstrations. And I think there is some movement to fold in together because we are ultimately talking about an issue that impacts everyone. But there is work to be done. There’s work to be done specifically for trans women of color and all trans people of color because while trans people experience higher discrimination than most other groups, trans people of color get that on multiple fronts.

Kim Brown: And lastly, Bre, what is a way in your opinion that white folks can best ally with black people in this moment, especially black trans women and gay black people? What is the best way from your perspective and from your experience to stand in solidarity with people as we are experiencing this tremendous moment in American history?

Bre Kidman: I think I would be a bad accomplice if I said that I had the perfect answer to this question. It’s not my place to say what the best way to be an ally or an accomplice is, but that’s kind of, I guess my point. My point is, I think that the best thing for white people to do in this moment is to listen, is to listen to movement leaders, is to listen more than you speak, and is to take the message that you’re receiving from movement leaders about what people need and amplify it. Amplify the messages of black and brown people, make space for black and brown people to speak.

Don’t speak over black and Brown people. And certainly don’t, I think that I’m seeing a lot of that is really grading to me right now is a lot of white liberals have this impulse to polish the message or change the message to be more palatable to white people. And I think that’s incredibly offensive and wrongheaded. I think we need to let people who are closest to the issue speak about what they need and our job as accomplices is to amplify that and make it happen to the best of our ability. We need to relax into black leadership at this moment and, not relax into, but I mean, stand behind black leadership and use our privilege to give that effect.

Kim Brown: We’ve been speaking with activist and attorney, Bre Kidman. They are seeking the Democratic nomination for Senate in Maine to face off against Republican Susan Collins in November. The primary is July 14th. Bre, we appreciate you joining us and thank you so much for taking the time to speak with us.

Bre Kidman: Thank you so much for having me.

Kim Brown: And thank you for watching The Real News Network.

Production: Genevieve Montinar
Studio: Adam Coley