The Supreme Court’s historic decision to overturn the 40-year-old Chevron doctrine may have ripple effects for virtually everyone in the US and disproportionately affect LGBTQ+ people, experts say.
Many regulations that protect queer people come in the form of federal agency rules, such as Section 1557 of the Affordable Care Act, which prohibits healthcare providers from discriminating against patients based on their sexual orientation or gender identity. In Chevron’s absence, however, agencies may have a harder time enforcing those rules if litigants attempt to challenge them in court.
The overruling opens the door for judges to decide that agencies don’t know best, experts say. “It’s this judge’s singular interpretation that matters [without Chevron], which can obviously be very problematic for LGBTQ folks and other marginalized communities that have really benefited from some of these regulations,” Timothy Wang, director of policy and advocacy at Chicago-based Howard Brown Health, an LGBTQ+-focused healthcare provider, told Healthcare Brew. Essentially, conservative judges and organizations that oppose transgender rights may have an easier time overturning healthcare protections in Chevron’s absence.
One federal judge in Mississippi has already decided that the Department of Health and Human Services (HHS) doesn’t have the authority to enforce Section 1557, Wang noted.
In the decision, US District Judge Louis Guirola wrote, “The Supreme Court recently held that agencies are no longer entitled to deference pursuant to Chevron…because Chevron ‘allow[ed] agencies to change course even when Congress [had] given them no authority to do so.’” The ruling comes after 15 states filed a lawsuit against HHS, claiming the rule was unconstitutional.
That anti-discrimination rule, finalized in April and set to take effect in July, was intended to provide LGBTQ+ people protection and potential recourse if they faced discrimination when accessing healthcare. The rule would have reinstated protections established in 2016 during the Obama administration that were later scrapped by the Trump administration in 2020. Now, with the judge having issued a nationwide injunction on Section 1557, it may become harder for queer people to access healthcare services, “especially in places where they don’t have access to queer-affirming healthcare providers,” Wang said.
At least 26 states have some form of ban against best practice care for transgender youth, according to the nonprofit think tank Movement Advancement Project.
A lack of expertise
A primary concern is that experts would no longer be the ones making healthcare policies that affect queer patients since courts wouldn’t be required to defer to agencies, according to Kellan Baker, executive director and chief learning officer at the Whitman-Walker Institute, an LGBTQ+-centered health center and research institution in Washington, DC.
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District courts have often ruled in favor of transgender health access when looking at facts and evidence, i.e., accepted best practice standards for care, Baker told Healthcare Brew. For example, in April, the 4th Circuit Court of Appeals in Virginia ruled that state health insurance in North Carolina and West Virginia must cover gender-affirming care.
Baker noted that several major medical associations, including the American Medical Association and the American College of Physicians, support best practice care for transgender people, including hormone therapy, voice and communication therapy, and surgery.
Baker said that judges seem to recognize that the purpose of the Chevron doctrine is to stop politicians from making decisions on things they’re not experts in, such as healthcare.
He expressed concern that courts could be flooded with legal challenges post-Chevron, and therefore wouldn’t have the bandwidth to thoroughly consider evidence.
“In trans health, as in any area of health or any area of law, we want important decisions about law and policy to be made by people with expertise,” he said.
Looking ahead
In the future, LGBTQ+ protections need to be “very explicitly” included in legislation so the scope of application is irrefutable, Wang said. But he added that the current climate in Congress could be a major hurdle, which he described as “a really big concern for the LGBTQ community.”
Sean Cahill, director of health policy research at the Fenway Institute, an LGBTQ+-focused healthcare provider and research institute in Boston, said he expects there will be many more legal challenges to existing regulations that protect access to healthcare for queer people as well as a slower rulemaking process and “a diminished ability of the federal government to take steps to promote health equity.”
“In the face of congressional inaction on LGBT equality or LGBT health concerns, we rely on the federal government—the executive branch—to take steps, to take action,” Cahill said. “Going forward, there’s going to be a lot more reluctance to make rules and just a lot more deliberation and maybe slowness to the rulemaking.”