By Oliver Petersen
Editor’s Note: Oliver Petersen, a 2021 graduate from the School Without Walls High School in Washington, D.C., writes about how the Do No Harm Act will help protect the rights of transgender people. Oliver’s essay placed third in AU’s 2021 Student Essay Contest, winning a $500 prize. You can learn more about the contest and the other finalists here.
In the past decade, transgender people have become much more widely recognized and accepted within the United States. Prominent transgender figures, such as Laverne Cox, Caitlyn Jenner and Elliot Page, have used their platforms to garner public support concerning trans issues, which has helped drastically shift public opinion. In fact, recent polling by the Public Religion Research Institute in 2019 found that 62% of Americans reported that they have become “more supportive toward transgender rights compared to their views five years ago.”
As a transgender person myself, the rise in support and understanding amongst friends and family due to increased awareness and representation in the past few years has been palpable. However, despite these positive changes, transgender people in the U.S. still face discrimination in almost every aspect of their lives, effecting their physical and mental well-being, as well as their ability to lead normal and healthy lives.
Over the past 5 years, especially during the Trump administration, constant streams of policies have been introduced and passed on both the state and federal levels that negatively impact transgender people, specifically in the realms of health care, education and employment. Notably, many of these bills allowed and encouraged the right to deny transgender people services and care on religious grounds, due to exploitation of the Religious Freedom Restoration Act (RFRA).
This act, which was put in place to provide heightened but not unlimited protections for religious minorities, has been used in bad faith for decades. Although RFRA was created with the best of intentions, and at its creation was backed by many civil rights groups, it has been abused in cases like Burwell v. Hobby Lobby and EEOC v. R.G. & G.R. Harris Funeral Homes, and has been used as precedent to attack almost every aspect of transgender people’s lives, effectively setting back many of the strides that have been made as a country regarding anti-discrimination laws.
The U.S. Department of Health and Human Services (HHS) has been particularly harmful with its anti-transgender policies. In 2018 HHS proposed a policy called the Denial of Care Rule that the National Center for Transgender Equality (NCTE) said “encouraged medical providers to use religious grounds to deny treatment to transgender people,” and in 2019 published the final rule “encouraging hospital officials, staff, and insurance companies to deny care to transgender patients based on religious or moral beliefs.” This policy, even if eventually challenged and blocked in court, is extremely threatening as it sets a dangerous precedent and increases mistrust transgender people have of the health care system.
In fact, according to the 2015 U.S. Transgender Survey, almost 25% of respondents reported avoiding medical help when they needed it due to fear of being discriminated against. These fears held by transgender people are not in any way unfounded, as the same survey found that “33% of respondents reported having at least one negative experience with a health care provider in the past year related to being transgender.” The barriers established by the HHS’s discriminatory policies make it harder for transgender people to seek routine health care that is unrelated to their transgender identity, leaving individuals vulnerable to illness and larger health issues later in life.
Anti-transgender legislation with religious justification has also been pushed by the Department of Labor, affecting employment. In 2019, the department announced a proposed rule that NCTE said would radically expand “the ability of federal contractors to exempt themselves from equal employment opportunity requirements, allowing employers to impose ‘religious criteria’ on LGBT employees.” As with health care, this kind of legislation affects transgender people’s quality of life, and exacerbates the existing barriers to employment.
This problem is outlined in the 2015 U.S. Transgender Survey, in which it is reported that the unemployment rate for transgender people is 3 times the national average, and that “30% of transgender employees reported having been fired, denied a promotion, or experienced another form of mistreatment in the workplace due to their gender identity or expression.” With limited access to workplaces that are safe and affirming, transgender people are put at greater risk for poverty, homelessness and involvement with criminalized work.
Discriminatory anti-transgender policies favoring religious institutions also affect transgender youth in America’s schools. In 2019 the Department of Education “published regulations permitting religious schools to ignore nondiscrimination standards.” These policies are extremely dangerous to vulnerable transgender youth, many of whom are struggling with their identities and are not accepted by their families. In school, students must feel comfortable in order to foster an effective learning environment; however, the 2015 U.S. Transgender Survey found that “84% of transgender students do not always feel safe in the classroom.” This not only affects a student’s ability to learn, but also can be detrimental to their mental and physical well-being. These issues are some of main factors as to why 17% of transgender students drop out of school before the age of 18, according to the survey. By ignoring nondiscrimination policies, these schools put transgender youth at a serious risk of harassment or violence. (Editor’s note: The Department of Education recently announced it is reconsidering this rule, which Americans United is challenging in court.)
The Do No Harm Act would be monumental for the protection of transgender rights as they relate to church and state separation. Over the years, we’ve seen people attempt to and successfully use the freedom of religion as a front to openly push hateful and discriminatory legislation, which must come to an end. Those in opposition, such as the Southern Baptist Convention’s Ethics and Religious Liberty Commission, say that this act will “do significant harm to the landscape of legal protections foundational to America’s first freedom,” when, in reality, the Do No Harm Act will continue protecting freedom of religion, while strengthening RFRA to make sure that individuals, businesses and government bodies cannot use said freedom to trample on those most vulnerable.