How The Supreme Court's Ruling May Affect The Trump Administration's Actions

Jun 15, 2020
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AILSA CHANG, HOST:

The last few days have involved a bit of whiplash for people in the LGBTQ community. Today, the Supreme Court issued a landmark decision. It ruled that protections against sex discrimination in employment cover people who are gay or transgender. But last Friday, the Trump administration issued a rule that asserts this - that sex discrimination in health care does not cover the discrimination of gay or transgender people - two branches of government saying pretty much opposite things. Here to help us explain all of this is NPR health policy reporter Selena Simmons-Duffin.

Hey, Selena.

SELENA SIMMONS-DUFFIN, BYLINE: Hi, Ailsa.

CHANG: Hi. So maybe a good place to start is just give us a recap of these two things - first, the Supreme Court ruling today and then this health discrimination rule issued last week.

SIMMONS-DUFFIN: Right. So the big news today is the Supreme Court decision. There were three cases. In two of them, gay men were fired. And in one, a transgender woman was fired. The law at issue was Title VII of the Civil Rights Act of 1964, which says you can't discriminate against someone at work because of, quote, "sex." Today, the high court ruled that sex discrimination includes discrimination against someone because of their gender identity or sexual orientation. So those firings do violate federal law, and LGBTQ activists are hailing it as a huge victory.

Now let's time travel back to Friday. I was here on the show talking about a new rule from the Trump administration's Department of Health and Human Services, and that rule stripped back language that explicitly protected LGBTQ people from being discriminated against in health care. So the White House was saying only discrimination on the basis of being male or female in health care was protected, not discrimination for being gay or transgender.

CHANG: OK. Well, how do these two developments over the last few days interact? I mean, what impact might this Supreme Court decision today have on the transgender health rule?

SIMMONS-DUFFIN: Well, the - it doesn't have any immediate impact. It's about a different part of federal law - employment discrimination, not discrimination in health care - but it could have implications for the effect the rule might have. And it could make a legal challenge to the rule more likely to succeed if courts start looking at any law that talks about sex discrimination, and they start saying, OK, well, now the Supreme Court tells us we should read that to cover LGBTQ people.

CHANG: Right. OK. The timing of these two pretty conflicting developments is sort of confusing here. I'm wondering - what's your sense of how coincidental the timing seemed to be?

SIMMONS-DUFFIN: It's almost certainly not a coincidence at all. A lot of legal experts I talked to about the HHS rule thought it was kind of bananas they would finalize it, knowing that the Supreme Court was about to issue a ruling on sex discrimination and LGBTQ people. And some theorize that HHS was trying to get ahead of the Supreme Court.

CHANG: Interesting.

SIMMONS-DUFFIN: I asked the HHS office that issued the rule for comment on whether they plan to withdraw or amend it in light of the Supreme Court decision. And I have not gotten that comment back yet.

CHANG: The rule that we're talking about that affects transgender people in health care - it's one of lots of rules and policies the Trump administration has issued. I'm thinking about the trans military ban, guidance on transgender students in public schools. I'm wondering - what do you think the implications of this Supreme Court decision could be on those things?

SIMMONS-DUFFIN: You're right. There is some history here. The Obama administration determined that sex discrimination covered LGBTQ people. And it issued lots of rules and policies that explicitly laid that out. When we say you can't discriminate on the basis of sex in school or in housing or in employment, we're thinking about sexual orientation and gender identity, too.

So then when the Trump administration came in, it systematically went through and dismantled those rules and policies. And a big part of the argument was, we're going back to the text of the law, and the text just says the word sex, meaning male or female. It doesn't say those other words.

So what the Supreme Court decision does is it forces us to understand sex to mean sexual orientation and gender identity. The text doesn't have to change, and it's significant that the textualist justice, Neil Gorsuch, wrote the majority opinion in this case. So again, with all of these policies, the effect is not immediate. But as lawsuits against the Trump rules play out in the courts, there's now this new, big, influential flag in the ground on where the Supreme Court is on this issue.

CHANG: That is NPR health policy reporter Selena Simmons-Duffin.

Thank you, Selena.

SIMMONS-DUFFIN: Thanks, Ailsa. Transcript provided by NPR, Copyright NPR.