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Abstract
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The triumph of marriage equality for lesbian, gay, bisexual, transgender, and other sexual and gender minority (LGBTQ+) persons in Obergefell v Hodges (2015)1 was a transformational civil rights victory, along with the US Supreme Court’s subsequent ruling on employment discrimination in Bostock v Clayton County (2020).2 The Supreme Court decisions portended great changes for more inclusive family law and affordable access to health care. The National Academy of Sciences concluded that discrimination can powerfully harm the health and well-being of sexual and gender minority members.3 These harms are amplified by further marginalization by race/ethnicity, income insecurity, and atypical gender identity. Yet a new Supreme Court conservative majority may well claw back vital legal protections.
In the wake of Obergefell, more than half a million Americans have legally married persons of the same sex. Those marriages carry significant health benefits—not only a more secure social safety net, but also family health insurance as a job benefit, as well as rights to access spouses who are hospitalized and make medical decisions for spouses who become incompetent.
Despite its benefits, and with no evidence of negative effects on other families, Obergefell has come under fire, with some critics refusing to recognize same-sex marriages as equal to other marriages under law. Arkansas, for example, initially prohibited both spouses of the same sex from being recognized on their child’s birth certificate; the restriction is denigrating to the family and could create problems for the child in accessing health care benefits because she or he is not formally listed on an official document. However, in Pavan v Smith (2017), the Supreme Court reversed the Arkansas policy in a 6-to-3 majority ruling. And in Houston, when the city began offering health benefits to municipal employees with domestic partners of the same sex, the local Republican Party sued to stop it. The Texas Supreme Court subsequently allowed the suit to proceed.4
Most Americans gain access to health insurance through the workplace (rather than health exchanges), making job discrimination a blow to both health and economic security. In June 2020, Bostock interpreted Title VII to bar job discrimination against employees because of their partner’s sex or their gender presentation. Nonetheless, the primary dissenting opinion predicted that “healthcare benefits may emerge as an intense battleground.” Transgender employees, for example, have brought suit under Title VII to challenge employer-provided health insurance plans that do not cover sex reassignment surgery. Bostock will likely apply to a range of health-associated laws that bar discrimination because of sex—including the Public Health Service Act (1944), Family and Medical Leave Act (1993), and access to health insurance via the Affordable Care Act (ACA) (2010). In addition, federal statutes conditioning health-associated block grants to nondiscrimination protections based on sex will now bar discrimination on the basis of the sex of one’s partner or gender identity ...
Language: en |