National
Bracing for cuts after supercommittee’s failure
LGBT, HIV/AIDS programs could face reductions
LGBT and HIV/AIDS advocates are bracing for potential cuts as a result of the congressional supercommittee’s failure this week to come up with a deficit reduction deal.
On Monday, members of the Joint Select Committee on Deficit Reduction — comprised of six Democrats and six Republicans — announced that they were unable to come up with an agreement on $1.5 trillion in budget cuts by the Wednesday deadline as established by legislation signed by President Obama in August.
As a result of the supercommittee’s failure to come up with a plan for deficit reduction, a sequester will kick in that will lower spending by $1.2 trillion beginning in fiscal year 2013 by $109.3 billion in cuts per year. Half of the cuts — $54.7 billion — will come from the Defense Department and the other half from mandatory and discretionary domestic spending — including HIV/AIDS programs and certain government programs that help LGBT people.
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According to the Congressional Budget Office, reductions in discretionary appropriations for non-defense programs — including HIV/AIDS programs — would range from from 7.8 percent in 2013 to 5.5 percent in 2021, resulting in savings of $294 billion.
AIDS Institute Deputy Executive Director Carl Schmid (Blade file photo by Michael Key)
Carl Schmid, deputy executive director for the AIDS Institute, said the mandatory cuts that will occur in 2013 “will certainly impact funding levels” for discretionary HIV/AIDS programs such as the Ryan White Care Act, AIDS Drug Assistance Programs and research spending.
“We’re going to try to work to make sure that doesn’t happen, but if it does happen, there’ll be less money for prevention, less money for drugs to keep people healthy, less for care and treatment and less money for research,” Schmid said.
Schmid added the potential cuts are of particular concern because the number of people living with HIV/AIDS continues to grow.
“There’s more and more people living with HIV than ever before,” Schmid said. “There’s more accessing the AIDS Drug Assistance Program than ever before, so it’s at a time when there’s more and more people with HIV, and at a time that we know treatment is a way to cut transmission.”
According to a CDC report published in August, HIV in the United States continues to disproportionately impact young gay and bisexual men, although as a whole, infection rates have been relatively stable in recent years. New infections among among young men who have sex with men increased 34 percent between 2006 and 2009, while infections among young, black men who have sex with men increased 48 percent from 4,400 in 2006 to 6,500 in 2009.
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Brian Hujdich, executive director for HealthHIV, also said the failure of the supercommittee may jeopardize federal programs on which low-income Americans depend for medical coverage.
“We are disappointed but not surprised at the supercommittee’s inaction,” Hujdich said. “They had both the latitude and responsibility to make hard decisions, but once again chose to do nothing. The weight of congressional indecision now falls on the backs of the most vulnerable and medically under-served communities, whose health care coverage may be impacted in 2013.”
Other programs at risk could include some that LGBT Americans rely on in greater numbers than their straight counterparts.
Last week, Kellan Baker and Zach Britt of the Center for American Progress wrote a report that detailed how either action or inaction by the supercommittee could have significant impact on programs affecting LGBT people.
“Gay and transgender communities most at risk include families with children and gay and transgender people who are doubly marginalized in American society, such as gay and transgender people of color, those living in poverty, immigrants, homeless youth, elders, and those with disabilities,” Baker and Britt wrote.
Among the programs identified that could be cut include planned data collection by the Department of Health & Human Services on sexual orientation and gender identity; mental health services that help LGBT youth and adults cope with depression, bullying and discrimination; and programs that support out-of-home gay and transgender youth.
Despite the failure of the committee, many were unhappy with plans the committee was proposing and thankful an agreement wasn’t made on any one of them.
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According to the CAP report, Democrats proposed cutting $400 billion from Medicare, $75 billion from Medicaid and $1.3 trillion in discretionary spending — while increasing revenue by $1.3 trillion. Republicans, on the other hand, proposed to cut $500 billion from Medicare and $185 billion from Medicaid, with $1.2 trillion more in discretionary cuts and only $40 billion in revenue increases.
Laurie Young, director of aging and economic security at the National Gay & Lesbian Task Force, said the plans the supercommittee was proposing were “really not good” and the failure to come up with a plan is better than an agreement on a bad one.
“No deal today is better than them having agreed upon a bad deal that would have cut benefits to people who are already receiving them and relying on them,” Young said.
Moreover, the two largest programs providing HIV/AIDS care to low-income people — Medicare and Medicaid — won’t see immediate cuts as a result of the supercommittee’s failure. Social Security and Medicaid are immune from cuts under the sequester. Medicare would see, at most, a 2 percent reduction in payments, but those cuts would only affect providers and would not raise co-pays or premiums on people covered under this program.
Young said the exemption of these programs is important because LGBT people are particularly dependent on Medicare, Medicaid and Social Security as they age.
“We don’t have the same ability to access economic security and retirement that our heterosexual counterparts do,” Young said. “And so, we’re twice as likely to age alone and four times less likely to have children who would take care of us.”
But Schmid said the protection of Medicare and Medicaid from the sequester “doesn’t mean all the problems are solved” and those programs could be affected as Congress makes the decisions for cuts.
“There’s still going to be pressure to cut Medicare and Medicaid in the future, so we have to remain vigilant,” Schmid said.
Since the cuts won’t begin until Jan. 2, 2013, Congress has the opportunity to come up with an alternative for deficit reduction rather than the sequestration imposed the supercommittee’s failure to come up with a plan.
Young predicted Congress would work to come up with an alternative because Republicans won’t want to see drastic cuts to defense and Democrats won’t want to see drastic cuts to domestic programs.
“We’re going to have to work over the next year to make sure that we get a balanced plan that doesn’t depend on just slashing benefits or slashing cuts in federal agencies, but also really looks to raising revenues,” Young said. “The chore for next year is making sure that we can get a balanced plan, which was never really considered by the supercommittee.”
Schmid said advocates are going to fight to include HIV/AIDS among the programs that won’t receive cuts, but acknowledged they’re facing an uphill battle.
“These are supposed to be across the board cuts, but there are some other low-income programs that are exempt by the law to sequestration and, I think, we will fight to be included in them as well,” Schmid said. “That will be our job over the next year before these cuts take place in 2013.”
National
United Methodist Church removes 40-year ban on gay clergy
Delegates also voted for other LGBTQ-inclusive measures
The United Methodist Church on Wednesday removed a ban on gay clergy that was in place for more than 40 years, voting to also allow LGBTQ weddings and end prohibitions on the use of United Methodist funds to “promote acceptance of homosexuality.”
Overturning the policy forbidding the church from ordaining “self-avowed practicing homosexuals” effectively formalized a practice that had caused an estimated quarter of U.S. congregations to leave the church.
The New York Times notes additional votes “affirming L.G.B.T.Q. inclusion in the church are expected before the meeting adjourns on Friday.” Wednesday’s measures were passed overwhelmingly and without debate. Delegates met in Charlotte, N.C.
According to the church’s General Council on Finance and Administration, there were 5,424,175 members in the U.S. in 2022 with an estimated global membership approaching 10 million.
The Times notes that other matters of business last week included a “regionalization” plan, which gave autonomy to different regions such that they can establish their own rules on matters including issues of sexuality — about which international factions are likelier to have more conservative views.
Federal Government
Republican state AGs challenge Biden administration’s revised Title IX policies
New rules protect LGBTQ students from discrimination
Four Republicans state attorneys general have sued the Biden-Harris administration over the U.S. Department of Education’s new Title IX policies that were finalized April 19 and carry anti-discrimination protections for LGBTQ students in public schools.
The lawsuit filed on Tuesday, which is led by the attorneys general of Kentucky and Tennessee, follows a pair of legal challenges from nine Republican states on Monday — all contesting the administration’s interpretation that sex-based discrimination under the statute also covers that which is based on the victim’s sexual orientation or gender identity.
The administration also rolled back Trump-era rules governing how schools must respond to allegations of sexual harassment and sexual assault, which were widely perceived as biased in favor of the interests of those who are accused.
“The U.S. Department of Education has no authority to let boys into girls’ locker rooms,” Tennessee Attorney General Jonathan Skrmetti said in a statement. “In the decades since its adoption, Title IX has been universally understood to protect the privacy and safety of women in private spaces like locker rooms and bathrooms.”
“Florida is suing the Biden administration over its unlawful Title IX changes,” Florida Gov. Ron DeSantis wrote on social media. “Biden is abusing his constitutional authority to push an ideological agenda that harms women and girls and conflicts with the truth.”
After announcing the finalization of the department’s new rules, Education Secretary Miguel Cardona told reporters, “These regulations make it crystal clear that everyone can access schools that are safe, welcoming and that respect their rights.”
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, a question that is addressed in a separate rule proposed by the agency in April.
LGBTQ and civil rights advocacy groups praised the changes. Lambda Legal issued a statement arguing the new rule “protects LGBTQ+ students from discrimination and other abuse,” adding that it “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.”
Federal Government
4th Circuit rules gender identity is a protected characteristic
Ruling a response to N.C., W.Va. legal challenges
BY ERIN REED | The 4th U.S. Circuit Court of Appeals ruled Monday that transgender people are a protected class and that Medicaid bans on trans care are unconstitutional.
Furthermore, the court ruled that discriminating based on a diagnosis of gender dysphoria is discrimination based on gender identity and sex. The ruling is in response to lower court challenges against state laws and policies in North Carolina and West Virginia that prevent trans people on state plans or Medicaid from obtaining coverage for gender-affirming care; those lower courts found such exclusions unconstitutional.
In issuing the final ruling, the 4th Circuit declared that trans exclusions were “obviously discriminatory” and were “in violation of the equal protection clause” of the Constitution, upholding lower court rulings that barred the discriminatory exclusions.
The 4th Circuit ruling focused on two cases in states within its jurisdiction: North Carolina and West Virginia. In North Carolina, trans state employees who rely on the State Health Plan were unable to use it to obtain gender-affirming care for gender dysphoria diagnoses.
In West Virginia, a similar exclusion applied to those on the state’s Medicaid plan for surgeries related to a diagnosis of gender dysphoria. Both exclusions were overturned by lower courts, and both states appealed to the 4th Circuit.
Attorneys for the states had argued that the policies were not discriminatory because the exclusions for gender affirming care “apply to everyone, not just transgender people.” The majority of the court, however, struck down such a claim, pointing to several other cases where such arguments break down, such as same-sex marriage bans “applying to straight, gay, lesbian, and bisexual people equally,” even though straight people would be entirely unaffected by such bans.
Other cases cited included literacy tests, a tax on wearing kippot for Jewish people, and interracial marriage in Loving v. Virginia.
See this portion of the court analysis here:
Of particular note in the majority opinion was a section on Geduldig v. Aiello that seemed laser-targeted toward an eventual U.S. Supreme Court decision on discriminatory policies targeting trans people. Geduldig v. Aiello, a 1974 ruling, determined that pregnancy discrimination is not inherently sex discrimination because it does not “classify on sex,” but rather, on pregnancy status.
Using similar arguments, the states claimed that gender affirming care exclusions did not classify or discriminate based on trans status or sex, but rather, on a diagnosis of gender dysphoria and treatments to alleviate that dysphoria.
The majority was unconvinced, ruling, “gender dysphoria is so intimately related to transgender status as to be virtually indistinguishable from it. The excluded treatments aim at addressing incongruity between sex assigned at birth and gender identity, the very heart of transgender status.” In doing so, the majority cited several cases, many from after Geduldig was decided.
Notably, Geduldig was cited in both the 6th and 11th Circuit decisions upholding gender affirming care bans in a handful of states.
The court also pointed to the potentially ridiculous conclusions that strict readings of what counts as proxy discrimination could lead to, such as if legislators attempted to use “XX chromosomes” and “XY chromosomes” to get around sex discrimination policies:
Importantly, the court also rebutted recent arguments that Bostock applies only to “limited Title VII claims involving employers who fired” LGBTQ employees, and not to Title IX, which the Affordable Care Act’s anti-discrimination mandate references. The majority stated that this is not the case, and that there is “nothing in Bostock to suggest the holding was that narrow.”
Ultimately, the court ruled that the exclusions on trans care violate the Equal Protection Clause of the Constitution. The court also ruled that the West Virginia Medicaid Program violates the Medicaid Act and the anti-discrimination provisions of the Affordable Care Act.
Additionally, the court upheld the dismissal of anti-trans expert testimony for lacking relevant expertise. West Virginia and North Carolina must end trans care exclusions in line with earlier district court decisions.
The decision will likely have nationwide impacts on court cases in other districts. The case had become a major battleground for trans rights, with dozens of states filing amicus briefs in favor or against the protection of the equal process rights of trans people. Twenty-one Republican states filed an amicus brief in favor of denying trans people anti-discrimination protections in healthcare, and 17 Democratic states joined an amicus brief in support of the healthcare rights of trans individuals.
Many Republican states are defending anti-trans laws that discriminate against trans people by banning or limiting gender-affirming care. These laws could come under threat if the legal rationale used in this decision is adopted by other circuits. In the 4th Circuit’s jurisdiction, West Virginia and North Carolina already have gender-affirming care bans for trans youth in place, and South Carolina may consider a similar bill this week.
The decision could potentially be used as precedent to challenge all of those laws in the near future and to deter South Carolina’s bill from passing into law.
The decision is the latest in a web of legal battles concerning trans people. Earlier this month, the 4th Circuit also reversed a sports ban in West Virginia, ruling that Title IX protects trans student athletes. However, the Supreme Court recently narrowed a victory for trans healthcare from the 9th U.S. Circuit Court of Appeals and allowed Idaho to continue enforcing its ban on gender-affirming care for everyone except the two plaintiffs in the case.
Importantly, that decision was not about the constitutionality of gender-affirming care, but the limits of temporary injunctions in the early stages of a constitutional challenge to discriminatory state laws. It is likely that the Supreme Court will ultimately hear cases on this topic in the near future.
Celebrating the victory, Lambda Legal Counsel and Health Care Strategist Omar Gonzalez-Pagan said in a posted statement, “The court’s decision sends a clear message that gender-affirming care is critical medical care for transgender people and that denying it is harmful and unlawful … We hope this decision makes it clear to policy makers across the country that health care decisions belong to patients, their families, and their doctors, not to politicians.”
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Erin Reed is a transgender woman (she/her pronouns) and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues, and community. Reed also is a social media consultant and public speaker.
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The preceding article was first published at Erin In The Morning and is republished with permission.
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Md. governor signs Freedom to Read Act
HHS reverses Trump-era anti-LGBTQ rule
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