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Biden administration to ban discrimination against LGBTQ patients

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The Biden administration announced on Monday it would enforce civil rights protections under Obamacare to prohibit discrimination in health care against patients for being LGBTQ, reversing policy during the Trump years excluding transgender status as a protected characteristic under the law.

The Department of Health & Human Services declared it would enforce Section 1557 of the Affordable Care Act, which prohibits discrimination in health care on the basis of sex, and begin to take up cases of discrimination based on sexual orientation and gender identity.

HHS Secretary Xavier Becerra said in a statement the Supreme Court has “made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation.”

“Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences,” Becerra said. “It is the position of the Department of Health and Human Services that everyone — including LGBTQ people — should be able to access health care, free from discrimination or interference, period.”

The move is consistent with the executive order President Biden signed on his first day in office directing federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the furthest extent possible. Federal agencies were directed to comply within 100 days of the executive order, which is about now and a short time after Biden’s first 100 days in office.

The announcement with respect to Section 1557 comes on the same day as the hearing took place this morning in Bagly v. HHS, a case before a federal court in Massachusetts challenging Trump’s undoing of transgender protections under the law. An attorney with the U.S. Justice Department announced a new notice of proposed rule-making is coming with respect to Section 1557.

Sharita Gruberg, vice president for the LGBTQ Research and Communications Project at the Center for American Progress, said in a statement the change “assures LGBTQ people that their rights will be upheld at the doctor’s office, vaccine sites, and everywhere else they seek health care and coverage.”

“The administration’s announcement that it will enforce these protections are a critical step toward addressing vaccine hesitancy among LGBTQ people, a population that has been disproportionately impacted by the pandemic and seriously harmed by the previous administration’s attempts to permit discrimination against LGBTQ patients, Gruberg added.

The past three administrations have instituted policy on LGBTQ protections based on their interpretation of Section 1557. Each move had varying implications and directions for LGBTQ patients.

The Obama administration issued a rule in 2016 interpreting Section 1557 to apply to cases of anti-transgender discrimination and discrimination against women who have had abortions, which was consistent with court rulings at the time. However, that move was enjoined by a nationwide court order in Texas as a result of litigation filed by Texas Attorney General Ken Paxton.

The Trump administration, shortly after the Supreme Court’s ruling in Bostock, made final a regulation proposed last year rescinding the Obama administration’s transgender protections under Section 1557. Faced with criticism, the Trump administration defended itself by saying its move was consistent with the court order in Texas, although it seemed to ignore the decision from the higher court.

The new rule from HHS goes above and the beyond the Obama administration by instituting protections based on both sexual orientation and gender identity. It wasn’t immediately clear whether the proposed rule would be a new regulation entirely, or seek to modify the changes that were made in the two previous administrations. The Blade has placed a request seeking comment with HHS.

Susan Bailey, president of the American Medical Association, said in a statement the new HHS rule is a welcome change after the Trump administration rescinded protections for transgender patients.

“It’s unfortunate that such an obvious step had to be taken; the AMA welcomes this common-sense understanding of the law,” Bailey said. “This move is a victory for health equity and ends a dismal chapter in which a federal agency sought to remove civil rights protections.”

Discrimination in health care is an experience transgender people commonly report. The U.S. Transgender Survey in 2015 found one-third of responders said they had at least one negative experience in health care related to being transgender. Further, 23 percent of responders said they didn’t seek health care because they feared being mistreated and one-third said they didn’t go to a provider because they couldn’t afford it.

A Center for American Progress survey from 2018 had similar findings with respect to transgender people and patients with being gay, lesbian and bisexual or queer. Eight percent of responders said a doctor refused to see them because of their perceived or actual sexual orientation, while 28 percent of providers said a doctor refused to see them because of their actual or perceived sexual orientation.

Hospitals, especially religiously affiliated providers, refusing to provide transition-related care, including gender assignment surgery, is another frequently reported incident for transgender patients. The American Civil Liberties Union, for example, has filed litigation against hospitals under Section 1557 for refusing to perform the procedure.

Rachel Levine, assistant secretary of health and the first openly transgender presidential appointee to obtain Senate confirmation, hailed the HHS rule change in a statement.

“The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk,” Levine said. “No one should be discriminated against when seeking medical services because of who they are.”

Although the Biden administration’s announcement is a welcome move for LGBTQ advocacy groups, the change is not without critics.

John Banzhaf, a law professor at George Washington University who declares himself a supporter of transgender rights, said the policy could have unintended consequences, which he said has become evident in the British health system.

“[Transgender] individuals with a penis but no vagina are being asked to have medical tests on their non-existent cervices, while [transgender] persons with a vagina and cervix will not be asked, under new guidelines which appear to place lives at risk and encourage a physically impossible medical exam on organs which simply do not exist,” Banzhaf said. “And, carrying this absurdity to its totally illogical conclusion, a patient with a penis and a full beard was offered a cervical test because, despite his clearly masculine appearance and style of dress, he registered himself as being gender neutral.”

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National

Far-right site says Satan’s overseeing Target’s holiday offerings

“When shoppers enter the seasonal aisles, they are greeted by pride flag waving Santa’s and transgender-themed nutcrackers”

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'Pride' Nutcracker 2023 holiday decoration item sold at Target stores. (Photo by Vilk Radic)

A staff writer for Florida-based far-right anti-LGBTQ+ Charisma Media’s blog Charisma News, alleges that Satan aka The Devil, Lucifer, or the Prince of Darkness, Beelzebub, Mephistopheles, Baphomet, Lord of the Flies, the Antichrist, Old Scratch, Father of Lies and Moloch is in charge of Minneapolis-based Target Corporation’s Christmas offerings.

According to James Lasher, Satan and Target teamed up to offer shoppers LGBTQ+ themed Christmas decorations. One in particular, an LGBTQ+ affirming nutcracker drew scrutiny. Lasher writes: “The year is not over yet, and the retail giant thought it would be a good idea to ring in the Christmas season with another ‘Pride’ campaign where they deck the halls in transgender flag colors.” He then goes on to note:

“When shoppers enter the seasonal aisles, they are greeted by pride flag waving Santa’s and transgender-themed nutcrackers who come in white and black and feature purple bears and a pride flag, the higher tier model costing $63.00 and comes with a staff with a heart on it saying “Love is Love.””

Lasher summarizes the Target Christmas holiday shopping experience as: “The goal of Satan is to move our ever-increasingly secular society away from any references of Jesus Christ. And he has succeeded mightily in accomplishing that goal in America. This entire charade of dedicating the month of June to pride is merely cover for the real goal of saturating American culture in this pagan ideology 24/7, and what more proof do you need than the attempt at making Christmas ‘Pride’ now?”

The Christian extremist writer then cites biblical references as to why Target is marketing-in-sin and then writes: “The Christian church is battling this takeover itself, with apostate congregations taking down crosses and replacing them with pride flags. No longer do they pray to Jesus and read the Bible, but instead they pray to drag queens and read the works of radical activists.”

In May of this year, outrage over LGBTQ+ Pride related merchandise being sold, especially in the company’s southern regional stores, by far-right activists caused Target Corporation to confirm that in some of its locations in semi-rural areas of rural Georgia, South Carolina, and Arkansas have moved Pride merchandise from the front of the stores to backroom areas or deeper into the stores after confrontations and backlash from shoppers.

Target’s Pride Collection, which was displayed for sale starting on May 1, is comprised of more than 2,000 products, including clothing, books, music and home furnishings. Items include “gender fluid” mugs, “queer all year” calendars and books for children aged 2-8 titled “Bye Bye, Binary,” “Pride 1,2,3” and “I’m not a girl.”

Speaking for the Minneapolis-based retail giant, spokesperson Kayla Castaneda noted: “Since introducing this year’s collection, we’ve experienced threats impacting our team members’ sense of safety and wellbeing while at work. Given these volatile circumstances, we are making adjustments to our plans, including removing items that have been at the center of the most significant confrontational behavior.”

Castaneda related that the company has been celebrating LGBTQ Pride Month for over ten years, but this year the increased opposition and hostility gave the company pause and led to a decision to pull some of the Pride merchandise.

In an email to the Blade in June, Castaneda said, “Our focus now is on moving forward with our continuing commitment to the LGBTQIA community and standing with them as we celebrate Pride month and throughout the year.”

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Florida

Newly introduced Florida bill could destroy LGBTQ nonprofits

It would establish “biological” pronouns as official state policy

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Florida House Of Representatives (Photo Credit: Florida House Of Representatives)

By Erin Reed | A new bill just introduced in Florida aims to expand “Don’t Say Gay Or Trans” provisions to a broad range of workplaces. Targeting government employees, contractors, and nonprofits, the bill sets forth restrictions and bans on policies relating to pronouns, gender identity, and sexuality.

Specifically, it would prohibit state and local government employees as well as any contractors engaged with the government from changing their pronouns or honorifics if they do not match their assigned sex at birth. It would also bar them from instructing on gender identity or sexuality, similar to “Don’t Say Gay Or Trans” laws already active in the state education system. The legislation would establish “biological” pronouns as official state policy.

The bill also would establish protections for what it calls “deeply held biology-based beliefs.” It may even prevent all nonprofits in the state from mandating any “training, instruction, or other activity on sexual orientation, gender identity, or gender expression,” a clause that could destroy LGBTQ+ nonprofits across Florida.

The bill, HB599, was introduced by Representative Ryan Chamberlin, a Republican. The bill is split into two sections, with the first section applying to government employees and contractors, which it defines as “an individual, partnership, corporation, or business entity” that “enters or attempts to enter into a contract for services” with any state, county, municipality, or special district of Florida.

These definitions encompass a huge number of businesses, such as stadiums, convention centers, major hospitals, insurance agencies, and more. For these businesses, as well as for all government workers, the bill would declare that it is the state’s policy that “a person’s sex is an immutable biological trait and that it is false to ascribe to a person a pronoun that does not correspond to such person’s sex.” It then would bar covered employees from sharing pronouns that “do not correspond to that person’s sex,” effectively banning social transition at work for these employees.

See the provisions barring pronouns, honorifics, and more here:

Provisions in HB 599

The bill also would enshrine a new phrase into law: protections for employees “deeply held religious or biology-based beliefs.” The phrase “deeply held religious beliefs” has longstanding precedent in constitutional law and is used to overturn laws judged to be violating someone’s freedom of religion.

Deeply held “biology-based” beliefs, however, are not something that has ever been a part of any law. It would appear that this line is meant to provide religious-based protections to people who assert that their misgendering of transgender people and using transgender people’s old names is part of their “biology-based” rights.

The bill is not limited in its application to government employees and contractors, however. A separate section of the bill would apply to “nonprofit organizations or an employer who receives funding from the state.” In the most broad reading of this section, separating “nonprofit organizations” from “employers who receive funding from the state,” it would bar all such organizations from mandating “training, instruction, or other activity on sexual orientation, gender identity, or gender expression.”

Provisions in HB 599

This provision is severe in its potential impact. Virtually every LGBTQ+ organization would be radically affected by it and would likely have to shut down. It would be nearly impossible for an LGBTQ+ organization to run without providing instruction, training, and “other activity” around gender identity or sexuality. It would be a blatant power grab by the state targeting organizations critical to the government and would further drive LGBTQ+ activism and organizing underground in the state. If enforced broadly, this section could have a similar impact to laws in Russia designed to shut down LGBTQ+ organizations there.

This section would have impacts far beyond LGBTQ+ organizations as well. The provisions would apply to “any organization that is exempt from taxation” including “s. 501” organizations. This would include, for instance, 501c4s, which are crucial during election cycles and could be used to target left-leaning organizations running election ads. Many of these organizations have LGBTQ+ employees and provide instruction and accommodations for their employees, which would be barred by the state if this gets passed into law.

It could also have impacts on medical organizations that do business with state and local governments. Planned Parenthood, a 501c3, heavily provides care for LGBTQ+ people, and such a law could be used to target the organization statewide. Likewise, many state hospital systems that do business with the government often must educate employees and patients on HIV and AIDs, which is impossible to divorce from LGBTQ+ issues. Community health clinics would, similarly, have to contend with these provisions.

Brandon J. Wolf, the National Press Secretary for the Human Rights Campaign said to the Blade in a statement Tuesday: “This Florida bill is a hateful, anti-LGBTQ+ monstrosity. It is dangerous, unconstitutional, and we know it’s just the start of politicians’ attacks on our community this legislative session. We’re prepared to fight back.”

This legislation represents an early move in what promises to be a challenging year for anti-LGBTQ+ legislation in 2024. Historically, Florida has often been the breeding ground for new laws aimed at the LGBTQ+ community. This bill might well serve as a precursor to the next “model policy” that could be replicated in multiple states, and bears close watching.

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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.

Follow her on Twitter (Link)

Website here: https://www.erininthemorning.com/

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The preceding article was first published at Erin In The Morning and is republished with permission.

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U.S. Federal Courts

Two men charged with attacking trans Puerto Rican woman sentenced to 33 months in prison

Alexa Negrón Luciano attacked with paintball gun before 2020 murder

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(Bigstock photo)

Two men who pleaded guilty to federal hate crimes charges in connection with attacking a transgender woman in Puerto Rico in 2020 have been sentenced to 33 months in prison.

The Justice Department in a Nov. 15 press release notes Jordany Laboy Garcia and Christian Rivera Otero will also have three years of supervised release upon their release from prison. The two men in September pleaded guilty to charges of conspiracy to commit a hate crime and obstruction of justice “out of an assault with a dangerous weapon against a transgender woman because of her gender identity.”

The Justice Department in a press release that announced the men’s guilty plea notes they, along with Anthony Lobos Ruiz “were out driving together” in Toa Baja, a municipality that is about 15 miles west of San Juan, early on Feb. 24, 2020, “when they saw” Alexa Negrón Luciano “standing under a tent near the side of the road.”

“The defendants recognized A.N.L. from social media posts concerning an incident that had occurred the day prior at a McDonald’s in Toa Baja,” reads the press release. “During that incident, A.N.L. had used a stall in the McDonald’s women’s restroom.”

Lobos, according to the Justice Department, and others used his iPhone to record themselves yelling at Negrón from inside a car. Lobos, Rivera and Laboy then recorded themselves shooting Negrón with a paintball gun and shared the video with other people.

Negrón was later killed in Toa Baja.

A federal judge last November sentenced Lobos to two years and nine months in prison after he pleaded guilty to hate crimes charges. Lobos, Rivera and Laboy have not been charged with Negrón’s murder.

“The defendants have been held accountable for assaulting a Latina transgender woman because of her gender identity and then trying to obstruct an investigation into that assault,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division in the press release.

U.S. Attorney for the District of Puerto Rico Stephen Muldrow said the “defendants’ attack endangered and terrified their victim, and such actions have no place in our community.” 

“Bias-motivated violence not only runs contrary to our values but violates federal civil rights laws,” he said. “We recognize the very real threats and acts of violence faced by the LGBTQI+ community and are determined to use every tool available to preserve the life, safety, and dignity of this community.”

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