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What’s next for health care reform?

After court ruling, focus turns to state plans for Medicaid

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Now that the Supreme Court has upheld the constitutionality of President Obama’s health care reform law, advocates are pushing for additional efforts to extend coverage of the law to LGBT people and people with HIV/AIDS to the fullest extent possible.

For the most part, the next step in the process involves looking to the states to determine whether they will adopt health policies afforded to them under the law — foremost among them is the Medicaid expansion to cover all people with incomes up to 133 percent of the federal poverty level.

Although the Supreme Court ruled the majority of the health care law is constitutional, it prevented the federal government from withholding all Medicaid funds from states if they decline to take part in the Medicaid expansion. As a result, states can decide whether or not to enter the expansion without fear of losing money.

Patrick Paschall, a policy advocate at the National Gay & Lesbian Task Force, said the Medicaid expansion is particularly important for LGBT people because they disproportionately live below the poverty level.

“The Medicaid expansions are going to end up being hugely important for LGBT people because it expands coverage to low-income people, and LGBT people are disproportionately low-income,” Paschall said. “We know this because of rampant employment discrimination and housing discrimination.”

A report on transgender people published earlier this year by the Task Force and the National Center for Transgender Equality, titled “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey,” found that transgender people experience unemployment at rates twice that of the national population, and black transgender people experience it at a rate of four times as much.

Carl Schmid, deputy executive director of the AIDS Institute, said the Medicaid expansion is particularly important for people with HIV/AIDS because of 50 percent of those in care rely on that program for support and those numbers will “grow substantially” if states decide to participate.

“Those who are really poor, they’re going to be covered under Medicaid,” Schmid said. “The question is what are we expecting from the states.”

But a number of states may not take part. According to a report in The Hill newspaper, at least 15 governors have signaled they won’t participate in the Medicaid expansion now that the Supreme Court has enabled them to wiggle out of participation.

Florida Gov. Rick Scott, a Republican elected to office during the Tea Party wave in 2010, was among those saying his state wouldn’t take part in the Medicaid expansion — or other parts of the health care law that are optional to the states.

“We’re not going to implement Obamacare in Florida,” Scott said last week on Fox News. “We’re not going to expand Medicaid because we’re going to do the right thing. We’re not going to do the exchange.”

Under the health care reform law, the federal government will pay for the Medicaid expansion for the first few years. Expenses for states come up in 2017, when the federal government will pay 95 percent; That’s reduced to 94 percent in 2018 and in 2019 it goes down to 93 percent. Starting in 2010 and then on out, the federal government will pay 90 percent of the total amount.

Schmid said the bargain that was set up for states under the health care law makes the governors’ decision not to participate in the law questionable.

“Here their taxpayers are going to be paying their taxes to pay for this; this is federal funds,” Schmid said. “Their state is not going to take responsibility for covering. The hospitals? Don’t they want people to be covered? They’re going to have unconstituted care if they don’t.”

For the states that don’t participate in the Medicaid expansion, Schmid said people living there with HIV/AIDS will have to continue relying on the Ryan White Care Program, which provides funds for AIDS medications for low-income people with HIV. The program will be up for reauthorization in 2013.

As advocates push for states to adopt the Medicaid expansion, the law has several key components that already offer protections and benefits for LGBT people and people with HIV/AIDS. State and federal health insurance will be set up in the law starting in 2014.

For the first time, the law extends federal non-discrimination protection in the health care system on the basis of gender.

Paschall noted that provision is key as courts and agencies have determined that discrimination against transgender people amounts to gender discrimination.

“We know that federal agencies like the Equal Employment Opportunity Commission, the Department of Housing & Urban Development as well as federal courts have interpreted sex-based discrimination to include protections on the basis of gender identity and sex stereotypes,” Paschall said. “What this means is that in the context of health care, LGBT people, especially transgender people have now for the first time protections in that setting, which is hugely important.”

Earlier this year, the Department of Health & Human Services issued rules saying that no program activity in an exchange, nor a health plan, can discriminate on the basis of sexual orientation and gender identity. The rule takes effect when exchanges open in 2014.

The administration has taken additional efforts to help the LGBT community when it comes to accessing health care. Same-sex couples can now search for health plans that cover domestic partners through the health care finder tool at healthfinder.gov. HHS has also undertaken data collection efforts to include questions about sexual orientation and gender identity in surveys like the National Health Interview Survey.

Still, advocates are looking for additional efforts from the administration — in addition to the adoption of the Medicaid expansion by the states — to ensure LGBT people are included in health care reform to the greatest extent possible.

Paschall said the Task Force wants to see data collection efforts expanded beyond the federal surveys already designated by the administration.

“Generally speaking, we would like to see sexual orientation and gender identity questions added to all federal surveys where demographic data is collected,” he said. “Our priorities include a number of federal surveys, maybe most notably the American Community Survey, which is an annual survey that collects demographic data and is considered one of the largest annual data sources on the American population.”

Paschall continued, “We’re also working with them to ensure that those questions are developed and included in other federal health surveys across the board so that we can have more data in more areas identify where those disparities are.”

For people living with HIV/AIDS, Schmid said he is awaiting from the administration regulatory guidance in the next couple months on essential health benefits to cover people in the Medicaid program and federal exchanges.

“We’ll see if the coverage will be strong enough for medications and for all different other services,” Schmid said.

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State Department

State Department releases annual human rights report

Antony Blinken reiterates criticism of Uganda’s Anti-Homosexuality Act

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(Photo courtesy of the Library of Congress)

Secretary of State Antony Blinken on Monday once again reiterated his criticism of Uganda’s Anti-Homosexuality Act upon release of the State Department’s annual human rights report.

“This year’s report also captures human rights abuses against members of vulnerable communities,” he told reporters. “In Afghanistan, the Taliban have limited work opportunities for women, shuttered institutions found educating girls, and increasing floggings for women and men accused of, quote, ‘immoral behavior,’ end quote. Uganda passed a draconian and discriminatory Anti-Homosexuality Act, threatening LGBTQI+ individuals with life imprisonment, even death, simply for being with the person they loved.”

Ugandan President Yoweri Museveni last May signed the law, which contains a death penalty provision for “aggravated homosexuality.”

The U.S. subsequently imposed visa restrictions on Ugandan officials and removed the country from a program that allows sub-Saharan African countries to trade duty-free with the U.S. The World Bank Group also announced the suspension of new loans to Uganda.

Uganda’s Constitutional Court earlier this month refused to “nullify the Anti-Homosexuality Act in its totality.” More than a dozen Ugandan LGBTQ activists have appealed the ruling.

Clare Byarugaba of Chapter Four Uganda, a Ugandan LGBTQ rights group, on Monday met with National Security Council Chief-of-Staff Curtis Ried. Jay Gilliam, the senior LGBTQI+ coordinator for the U.S. Agency for International Development, in February traveled to Uganda and met with LGBTQ activists who discussed the Anti-Homosexuality Act’s impact. 

“LGBTQI+ activists reported police arrested numerous individuals on the basis of their sexual orientation or gender identity and subjected many to forced anal exams, a medically discredited practice with no evidentiary value that was considered a form of cruel, inhuman, and degrading treatment and could amount to torture,” reads the human rights report.

The report, among other things, also notes Ugandan human rights activists “reported numerous instances of state and non-state actor violence and harassment against LGBTQI+ persons and noted authorities did not adequately investigate the cases.”

Report highlights anti-LGBTQ crackdowns in Ghana, Hungary, Russia

Ghanaian lawmakers on Feb. 28 approved the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill. The country’s president, Nana Akufo-Addo, has said he will not sign the measure until the Ghanaian Supreme Court rules on whether it is constitutional or not.

The human rights report notes “laws criminalizing consensual same-sex sexual conduct between adults” and “crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer or intersex persons” are among the “significant human rights issues” in Ghana. 

The report documents Hungarian Prime Minister Viktor Orbán and members of his right-wing Fidesz party’s continued rhetoric against “gender ideology.” It also notes Russia’s ongoing crackdown against LGBTQ people that includes reports of “state actors committed violence against LGBTQI+ individuals based on their sexual orientation or gender identity, particularly in Chechnya.”

The report specifically notes Russian President Vladimir Putin on July 24 signed a law that bans “legal gender recognition, medical interventions aimed at changing the sex of a person, and gender-affirming care.” It also points out Papua New Guinea is among the countries in which consensual same-sex sexual relations remain criminalized.

The Hungarian Parliament on April 4, 2024. Prime Minister Viktor Orbán and his right-wing Fidesz party in 2023 continued their anti-LGBTQ crackdown. (Washington Blade photo by Michael K. Lavers)

The Cook Islands and Mauritius in decriminalized homosexuality in 2023.

The report notes the Namibia Supreme Court last May ruled the country must recognize same-sex marriages legally performed outside the country. The report also highlights the Indian Supreme Court’s ruling against marriage equality that it issued last October. (It later announced it would consider an appeal of the decision.)

Congress requires the State Department to release a human rights report each year. 

The Biden-Harris administration in 2021 released a memorandum that committed the U.S. to promoting LGBTQ+ and intersex rights abroad.

The full report can be read here.

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National

Same-sex couples vulnerable to adverse effects of climate change

Williams Institute report based on Census, federal agencies

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Beach erosion in Fire Island Pines, N.Y. (Photo courtesy of Savannah Farrell / Actum)

A new report by the Williams Institute at the UCLA School of Law finds that same-sex couples are at greater risk of experiencing the adverse effects of climate change compared to different-sex couples.

LGBTQ people in same-sex couple households disproportionately live in coastal areas and cities and areas with poorer infrastructure and less access to resources, making them more vulnerable to climate hazards.

Using U.S. Census data and climate risk assessment data from NASA and the Federal Emergency Management Agency, researchers conducted a geographic analysis to assess the climate risk impacting same-sex couples. NASA’s risk assessment focuses on changes to meteorological patterns, infrastructure and built environment, and the presence of at-risk populations. FEMA’s assessment focuses on changes in the occurrence of severe weather events, accounting for at-risk populations, the availability of services, and access to resources.

Results show counties with a higher proportion of same-sex couples are, on average, at increased risk from environmental, infrastructure, and social vulnerabilities due to climate change.

“Given the disparate impact of climate change on LGBTQ populations, climate change policies, including disaster preparedness, response, and recovery plans, must address the specific needs and vulnerabilities facing LGBTQ people,” said study co-author Ari Shaw, senior fellow and director of international programs at the Williams Institute. “Policies should focus on mitigating discriminatory housing and urban development practices, making shelters safe spaces for LGBT people, and ensuring that relief aid reaches displaced LGBTQ individuals and families.”

“Factors underlying the geographic vulnerability are crucial to understanding why same-sex couples are threatened by climate change and whether the findings in our study apply to the broader LGBTQ population,” said study co-author Lindsay Mahowald, research data analyst at the Williams Institute. “More research is needed to examine how disparities in housing, employment, and health care among LGBT people compound the geographic vulnerabilities to climate change.”

Read the report

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Federal Government

Lambda Legal praises Biden-Harris administration’s finalized Title IX regulations

New rules to take effect Aug. 1

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U.S. Secretary of Education Miguel Cardona (Screen capture: AP/YouTube)

The Biden-Harris administration’s revised Title IX policy “protects LGBTQ+ students from discrimination and other abuse,” Lambda Legal said in a statement praising the U.S. Department of Education’s issuance of the final rule on Friday.

Slated to take effect on Aug. 1, the new regulations constitute an expansion of the 1972 Title IX civil rights law, which prohibits sex-based discrimination in education programs that receive federal funding.

Pursuant to the U.S. Supreme Court’s ruling in the landmark 2020 Bostock v. Clayton County case, the department’s revised policy clarifies that discrimination on the basis of sexual orientation and gender identity constitutes sex-based discrimination as defined under the law.

“These regulations make it crystal clear that everyone can access schools that are safe, welcoming and that respect their rights,” Education Secretary Miguel Cardona said during a call with reporters on Thursday.

While the new rule does not provide guidance on whether schools must allow transgender students to play on sports teams corresponding with their gender identity to comply with Title IX, the question is addressed in a separate rule proposed by the agency in April.

The administration’s new policy also reverses some Trump-era Title IX rules governing how schools must respond to reports of sexual harassment and sexual assault, which were widely seen as imbalanced in favor of the accused.

Jennifer Klein, the director of the White House Gender Policy Council, said during Thursday’s call that the department sought to strike a balance with respect to these issues, “reaffirming our longstanding commitment to fundamental fairness.”

“We applaud the Biden administration’s action to rescind the legally unsound, cruel, and dangerous sexual harassment and assault rule of the previous administration,” Lambda Legal Nonbinary and Transgender Rights Project Director Sasha Buchert said in the group’s statement on Friday.

“Today’s rule instead appropriately underscores that Title IX’s civil rights protections clearly cover LGBTQ+ students, as well as survivors and pregnant and parenting students across race and gender identity,” she said. “Schools must be places where students can learn and thrive free of harassment, discrimination, and other abuse.”

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