Judith Green is a co-founder of Woman’s Place UK, works in women’s health and is a former user of single-sex services for female survivors of childhood sexual abuse.
Health care is a human right.
The Trump administration roll back of anti-discrimination protections in healthcare is a victory for the religious right and a threat to women’s abortion rights.
The health care systems of the US and UK mark the stark differences between their respective social histories and political landscapes. The National Health Service (NHS), a radical gain of post-war social democracy, inspires deep emotional attachment to principles of collective care. We are all responsible for one another. In the US, the political triumph of principles of libertarian individualism and protection of profit, have scuppered attempts to create universal healthcare provision. ‘Obamacare’, vigorously opposed by capital, by republicans and libertarians, massively expanded the provision of insurance but fell short of guaranteeing the human right to health care.
Due to the NHS, fewer people in the UK face anxiety of healthcare-related debt and insecurity commonly experienced in the US. However, we are still very far from treating health care as a human right. Even as some NHS Trusts rightly raise the slogan #BlackLivesMatter and work to understand and address the discrepancies in covid deaths by ethnicity, the NHS continues to enact the government’s racist ‘hostile environment’ with horrendous results. The NHS charging regime is a central plank of this policy, with Trusts now obliged to to check the immigration status of patients and bill those who are not able to prove their entitlement. For pregnant women, this can mean bills of tens of thousands of pounds for maternity care.
The wide-ranging political ramifications of health care insecurity are hard to comprehend for those of us ‘born in the NHS’. For instance, the UK’s introduction of same sex marriage in addition to civil partnership was largely symbolic. Many same sex couples here eschew marriage, as an irrelevant, or even patriarchal, institution. By contrast, equal marriage can be a matter of life and death in the US, where marriage is a route to health care coverage. Equality would be better served by universal healthcare. Fear of losing insurance reduces the freedom to leave a marriage. Single people, irrespective of sexual orientation, cannot use marriage as a route to healthcare coverage. Nonetheless, the Supreme Court, in ruling for equality in 2015 did vastly increase access to federal rights and protections based on marital status from which those in same sex relationships had previously been excluded.
The UK Equality Act explicitly provides for single-sex exemptions to an anti-discrimination framework that covers race, religion and belief, age, disability, sex, pregnancy and maternity, marriage and civil partnership, sexual orientation and gender reassignment. While there has been concerted effort to interpret and apply this law in ways that simultaneously undercut single-sex exemptions while broadening the scope of discrimination on grounds of gender reassignment to the point of encroaching on sex, it provides a potential framework for balancing conflicting rights. In contrast, US anti-discrimination law has proceeded by a complex patchwork and accretion of legal cases, legislation and constitutional amendment, across federal, state and local jurisdictions that overlap.
In the US neither sexual orientation nor gender identity are protected by federal legislation. In the absence of specific anti-discrimination law, the US Department of Health and Human Services (HHS) had, in 2016, issued a new rule that prohibited “the denial of health care or health coverage based on an individual’s sex, including discrimination based on pregnancy, gender identity, and sex stereotyping.” Just as extending marriage rights to same sex couples is an imperfect mechanism to expand healthcare coverage, increasing the scope of sex discrimination to cover gender identity is not a perfect mechanism to extend needed protections to groups that are not otherwise protected.
The 2016 HHS rule also stated that the Office for Civil Rights would admit complaints of discrimination on the basis of sexual orientation, utilising sex stereotyping as sex discrimination. This chimes with the long-held view of radical gay liberationists and of some feminists that the oppression of women and the sex role stereotyping of compulsory heterosexuality is the root of anti-homosexual prejudice and discrimination. The same rule, while upholding existing protections for religious freedom and conscience declined to expand them.
US feminists have long pointed out the dangers of overbroad legal definitions eliding sex and gender as well as the need for clearly defined rights of women and girls to single-sex spaces. The additional HHS requirement that ‘health programs and activities…treat individuals consistent with their gender identity’ is an example of just such an overbroad definition with potential for real harm, not least to transgender individuals. The failure to identify a transman as pregnant, resulting in stillbirth, is a recent US example of the dangers of treatment consistent with gender identity rather than a sex.
The principle of universal access to health care without discrimination, need not imply support for any and every treatment or intervention. In the era before the NHS, Archibald Cochrane, a founder of evidence-based medicine, raised the slogan ‘All effective treatment must be free.’ The human right to healthcare includes the right to care that is evidence-based and ethical, that heals not harms, and that has our informed consent. The history of healthcare contains not only uplifting stories of human ingenuity and compassion of which we can be proud, but also the scandals of iatrogenic injury from which we must not turn away. Survivors of symphysiotomy, a hugely damaging obstetric procedure favoured in mid-twentieth century Ireland over caesarean section for ideological reasons, and women damaged by vaginal mesh implants are two groups harmed by treatments performed with insufficient scrutiny.
This week, the Trump administration, following legal victories by the religious right, reversed this rule. The denial of healthcare or healthcare coverage based on pregnancy, gender identity and sex stereotyping (including sexual orientation) is no longer prohibited and new exemptions have been added that allow health care providers to invoke religious objections to service provision. This is not about specific transgender health treatments, but about protection from discrimination in relation to any healthcare. Health care is a human right.
Some who support sex-based rights are misguidedly applauding this change in the US government position, despite the fact that it actively harms lesbians, women seeking abortions and women who defy gender norms, and despite the fact that it represents no benefit to women. The endorsement of ‘sex not gender’ in ACA anti-discrimination rules sets no precedent for the hundreds of pieces of state and local legislation on the books which will continue to elide sex and gender to the detriment of women. The victory belongs to a religious right who are waging a war on women and against the principle of health care as a human right.
13th June 2020