Penn Law Lambda recently hosted its fourth annual symposium entitled “LGBTQ Health and the Law: Advocacy and Action.” Panelists featured leading scholars and legal practitioners to discuss access to and discrimination within the healthcare system and to highlight current legal efforts to expand rights for the LGBTQ community.
Keynote: Alexander Chen
The first keynote speaker was Alexander Chen, Professor and Lecturer on Gender Identity and Sexual Orientation at Harvard Law School and the Founding Director of the Harvard Law School LGBTQ+ Advocacy Clinic. Chen shared his personal story and experiences that led him to a career in LGBTQ+ impact litigation and health policy.
“The trans community and allies made significant advancements to improve legal and medical standards but they started off with little institutional power, cultural power, and political power,” said Chen. “The whole history of trans access to healthcare and legal recognition is a history of trans people advocating for themselves. It wasn’t doctors or medical professionals. This inspired me to be a part of this movement and to become a trans advocate.”
Despite recent transgender medical advancements and achieving greater legal protections, many transgender people still face enormous barriers to their health.
“The issues that the LGBTQ community face now that we accomplished marriage equality and federal nondiscrimination protection being on the books, is that you then open the field beyond formal equality,” said Chen. “It’s a situation where disparities that reflect the inequalities that we have in American life become compounded and affect LGBTQ people in a systemic way that is not addressed as well as formal discrimination by our legal system.”
Chen urged further exploration into “how this inequality is connected to other forms of social inequality including racial justice issues, gender justice issues, class issues, and issues around disability discrimination” and described “a complicated challenge ahead that involves the structures of society, not just LGBTQ discrimination.”
The tremendous strides in LGBTQ inequality over the past 50 years have laid the foundation for future advocates and allies to continue building a future where all people are free.
“We can make a difference. We can improve society,” said Chen. “You as law students are going to be entering a space where you have ability and privilege to make positive contributions to our society.”
“Advocacy: Law and Policy Strategies in LGBTQ Healthcare”
The first panel, “Advocacy: Law and Policy Strategies in LGBTQ Healthcare,” was moderated by University of Pennsylvania Carey Law School Professor of Law Allison Hoffman. Panelists included Pennsylvania State Rep. Brian Sims (D-182nd District); Naiymah Sanchez, a proud trans Afro-Latina and Trans Justice Coordinator at the ACLU Pennsylvania; and Aaron Tax, Director of Advocacy at Advocacy & Services for LGBT Elders (SAGE).
The intentional misgendering and discrimination in the healthcare setting was a central topic of discussion, as were the levels of ignorance and uninformed practitioners concerning LGBTQ health as well as structural problems in the system.
Sanchez began by highlighting unconscious bias in the medial field.
“The frontlines of any service-providing are not only staff but includes transportation to these facilities, security, and those helping to keep facilities clean, who may also perpetuate unconscious biases and historical ignorance such as misgendering and mispronouncing,” Sanchez said. “This community incompetency can trigger traumas. We have to be mindful of that.”
Sims, who has drafted legislation to treat discrimination as a public health issue, added, “Our government services have a strong track record for discriminating against people because of their LGBTQ status, immigrant status, nationality, and race. In addition to us structurally not having support mechanisms for the LGBTQ communities, we have not seen systematic structural changes or the removal of biases in our healthcare system that have kept our communities at arm’s length. The effect of discrimination is that the communities that most need public heath support are pushed the farthest away from it. This has a negative impact on Pennsylvania.”
Bias in healthcare can be experienced in the simplest practices, as explained by Tax, who provided additional insights on existing institutional bias towards those who identify as LGBTQ.
“If you go to a healthcare setting, you have to fill out a form upon discharge that asks marital status,” said Tax. “An individual might have been with their partner for four decades but still might not be married because they set up their life at a time where marriage wasn’t an option.”
Remedying these processes are possible.
“Through cultural competency training and getting practitioners and providers up to speed on some of these issues, they can learn about how to ask questions that might be helpful for LGBTQ people. If we have policies that acknowledge the reality of people’s lives, it will benefit LGBTQ communities and straight cisgender individuals who may also be impacted by exclusive questionnaires,” added Tax. This awareness can be found within LGBTQ communities by providing a seat at the table for them.
In addition to existing biases in our healthcare system, COVID-19 has exasperated inequalities, especially for those who had already faced marginalization and systemic issues prior to the current public health crisis. This has necessitated stronger allyship and the need to amplify voices.
Sims believes that the LGBTQ community has a lot to offer in the national discussion about COVID-19.
“The LGBTQ community has expertise and value. Our institutions that were founded to combat the HIV/AIDS epidemic have decades of understanding the impacts of our behavior and public health,” Sims said. “An academic conversation about the impact of the HIV/AIDS community as overlay with intersectionality for people with COVID-19 as it relates to the LGBTQ communities has to be voiced. We need to lead with the people that are most impacted.”
“COVID-19 took a front seat to a lot of our work such as HIV/AIDS research,” Sanchez said. “It put a spotlight on several issues, making sure that we continue to move in a direction of harm reduction.”
The final topic for the panel was the federal court shift toward more conservative viewpoints and its impact.
“The silver lining is that decisions from the court or that have been standards and norms have been put into law,” said Sims. “Legislators are making sure that these issues are codified in law and not just precedential decision. I think that we are going to see, on a national level, this push to ensure that civil rights are better codified in our law than they have been up until this point.”
Tax echoed this sentiment, adding, “That is why there is great emphasis now on the Equality Act and codifying these important civil rights protections.”
“Action: The Roles of Impact Litigation and Client-Facing Services in Queer Health”
The second panel, “Action: The Roles of Impact Litigation and Client-Facing Services in Queer Health,” was moderated by Professor of Law and History Serena Mayeri. Panelists included Angie Martell, Founder and Managing Partner at Iglesia Martell Law Firm, PLLC; Omar Gonzalez-Pagan L’10, Senior Attorney and Health Care Strategist at Lambda Legal; and Kara Ingelhart, Staff Attorney at Lambda Legal.
One of the most crucial services that attorneys provide is educating parties about LGBTQ health issues.
“There is a plethora of areas in law in which it’s our responsibility as a lawyer to find out the collateral issues in the case and any healthcare concerns,” said Martell. “In a name change, I make sure that in the pleadings the correct pronouns that reflects my client are used. In the event that a notice of publication is required, it is important to recognize PTSD where practices such as this can cause emotional harm, but courts don’t always listen to lawyers, so I educate the court through medical providers when possible.”
Gonzalez-Pagan added, “People ask why our complaints have a prolonged section of definitions that have to do with LGBTQ identities, but it is because we do not know the judge going into a case. We need to be able, from the first document, to tell the court a story and educate them about who LGBTQ people are and who the client is before them. This has proven to be effective especially for judges who are unfamiliar with LGBTQ communities and relevant issues.”
Ingelhart reiterated, “We have had great success in front of judges who would not traditionally sympathize with LGBTQ people or people living with HIV/AIDS because of their political appointment, and that is in part related to our briefings. We have to educate the courts on how harm to a person’s mental and physical health is directly related to this constitutional issue relating to their identity document.”
The insights provided by each panelist were from a state court perspective. On a federal level, civil rights laws prohibiting discrimination in healthcare at large did not exist until the Affordable Care Act (ACA) was passed in 2010. Although the ACA was a major triumph in the pursuit of healthcare access and equity, LGBTQ advocates fought to ensure fair representation.
Gonzalez-Pagan explained, “It was not until 2016 that the Obama administration finalized the rules under Section 1557 of the ACA that redefined sex discrimination to include one’s internal sense of gender. Since it was at the end of his term, the provision was up for litigation and the Trump administration attempted to rollback health protections.”
Advocacy around regulations was already in motion, but there was a big shift in regulations that communicated to health insurance providers that, for example, categorical exclusions of gender affirming care were prohibited and unlawful.
“We saw a huge number of insurance plans eliminate those categorical exclusions in response to those regulations,” said Gonzalez-Pagan. “Ultimately, the battle now is going to be on the narrowing of protections given what we know already, which is that sex discrimination includes discrimination based on transgender status or sexual orientation. Litigation has been in multiple areas such as making sure that it is understood that the sex discrimination provision covers LGBTQ people and battling religious exceptions that are trying to be built in by opponents.”
Mayeri provided further insight into other tactics that have reclaimed protection for the LGBTQ community.
“We have been successful in educating employers to switch their insurance because its contradictory to what they say they will not discriminate against,” said Mayeri.
Keynote: Scott Schoettes
To close out the symposium, the final keynote speaker was Scott Schoettes, Counsel and HIV Project Director at Lambda Legal and who lives openly with HIV. Schoettes shared his story about having the opportunity to serve on former President Obama’s Presidential Advisory Council on HIV/AIDS (PACHA) as Co-Chair of the Disparities Committee to then waking up the morning after Election Day in November 2016 in what he describes as an unrecognizable country. He resigned from his position as Co-Chair in the summer of 2017.
Schoettes considers there to be two different parts to the issue of access to healthcare, particularly for individuals with HIV, and what it means to provide quality care: the healthcare itself and the social determinants of health. In 2011, only 20 percent of the people living with HIV had access to care and were on treatment and virally suppressed.
“Treatment did not reach everyone equally,” said Schoettes. “Affluent, white, gay men were benefiting from treatments that were not even new and had developed in the late 1990s [but still have not reached communities of color], so the goal was to show that if we continue down this path with the ACA, we can dramatically increase numbers.”
Through significant amicus work and persistent advocacy centered on the importance of the ACA and what it would mean if it were withdrawn, along with Medicaid expansion, the number of people that received treatment and were virally suppressed has more than doubled from 20 percent to 56 percent.
“The ACA helped moved us closer to a place where we could enforce rights and determine what quality of care is whether it is adequate access to available medication or putting up barriers to make it more difficult to access that care,” said Schoettes.
There is more work to be done.
“Eventually we are going to have to get over the fact that we are not going to discriminate anymore, that we are going to have one healthcare system that is for everyone, and that is about recognizing healthcare as a human right,” concluded Schoettes.
The Lambda Symposium was sponsored by Davis Polk & Wardell, Hogan Lovells, Morgan, Lewis & Bockius, Morrison & Foerster, Norton Rose Fulbright, Weil, Gotshal & Manges, Akin Gump Strauss Hauer & Feld and Sullivan & Cromwell.