What If The FTC Stopped Going After Corporate Fraud And Went After 'Trans' And 'Anti-Discrimination Law' Instead?
Cool cool cool cool cool cool cool.
Andrew N. Ferguson, a right-wing member of the Federal Trade Commission (which mandates no more than three seats be members of any one party), has launched a campaign for the FTC Chair position now held by Lina Khan, and all good people should be worried. Though commissioners are appointed to fixed terms, Khan’s term expired this September and she remains as chair though a law that allows her to continue until her replacement is Senate-confirmed. While it’s common for FTC chairs to change, what isn’t entirely common is the not-so-subtle push Ferguson is making for the job and the arguments he’s advancing.
Ferguson’s charm offensive isn’t limited to appealing directly to Donald Trump. Rather, he has been pushing allies behind the scenes to support him publicly, which resulted in a Friday New York Post editorial recommending him for the Chair’s job. Punchbowl News reporter Ben Brody also received something like a combination of resume and argument for Ferguson’s elevation that Ferguson has been circulating behind the scenes. And it turns out that document makes overt promises to attack trans people and anyone who benefits from anti-discrimination laws. Have a look:
Text of final two items:
Fight back against the trans agenda. Investigate the doctors, therapists, hospitals, and others who deceptively pushed gender confusion, puberty blockers, hormone replacement, and sex-change surgeries on children and adults while failing to disclose strong evidence that such interventions are not helpful and carry enormous risks.
Stop pursuing cases under lawless disparate impact discrimination theories. Such cases are designed to force companies to adopt de facto quotas and affirmative action policies.
Both of these items should be disturbing.
Disparate Impact
“Disparate impact” bans actors from using criteria which make someone more likely to get or not get a job, promotion, pay, or benefit if they belong to a protected classification without making it more likely that the person is actually more (or less) qualified. Imagine using SAT verbal scores to hire sales people and customer service reps at a paint store. We know that people of different races average different SAT scores. The rationale for using this test score would be that communication with customers is required, and the SAT verbal exam is a proxy for communication skills. But in fact the ability to sell paint to customers and keep them happy is unlikely to smoothly increase as SAT scores increase. It’s just not a good proxy, so requiring high SAT scores would increase whiteness without increasing competence. That is disparate impact.
In the case of criteria that are known to be racially biased (or gender biased, etc.) a government or in some cases a business must not use those criteria unless they are sufficiently related to the actual ability to succeed in the job. These pretexts have a long history of use and not only in employment. Language exams were used to prevent certain people (mostly Black Southerners) from voting. And as a result, disparate impact actions aren’t “lawless.” They’re a necessary tool for keeping opportunity equal and have been used lawfully since the beginning of the 1970s.
Attacking Trans Health Care
Ferguson’s anti-trans promise is based on the “Big Trans” conspiracy theory that medical providers are only diagnosing transness to make themselves rich off of unnecessary treatment for a fictitious disorder. The hostility to trans people is as pointed as it is mendacious.
Ferguson isn’t the first to use this imaginary conspiracy as justification to harass providers, but he would be the first regulator to do so at the federal level. Texas Attorney General Ken Paxton has used his state’s Deceptive Trade Practices Act to attempt to violate the privacy of patient records kept by hospitals as far from Austin as Seattle. Seattle Children’s Hospital received a “civil investigative demand” (think of it like a subpoena) from Paxton a year ago. Though they were successful in quashing the demand as the Texas DTPA gives Paxton no authority over entities in other states, the Federal Trade Commission has jurisdiction in every state.
Ferguson’s promise is no idle threat. In addition to the potential to break the veil of HIPAA privacy, federal deceptive trade practices actions against trans health providers would likely cause problems with basic access. Prescribers in states that are cracking down on trans health care have frequently cut off patients who are legally entitled to receive care (such as adults in states that only ban care for minors). This can be because clinics and doctors simply don’t have the money to fight constant legal battles or because the clinics are part of a public entity or an entity receiving public funds. In South Carolina no state funds can go “directly or indirectly” to trans health care, which caused one clinic within the Medical University of South Carolina to shut down and creates questions as to whether any subsidized clinic (such as those that serve homeless and impoverished residents) could ever provide trans health care in the state. This causes knock on effects, such as private providers leaving a state and creating an unmanageable backlog at the remaining private clinics that are willing to provide care.
This sudden loss of access for adolescents and adults is mirrored in other places, such as in the UK where The Independent recently reported declining prescription availability for adult patients, even ones of long standing, in the aftermath of the Cass Report — a report which did not even attempt to assess adult care. It’s hard to imagine that a Ferguson-led FTC would not have broad impacts on prescription access across the country, even in sanctuary states like California, Minnesota, and New York.
The picture this paints is bleak. The weapons being brought to bear are far more numerous and subtle than the blunt bans instituted by Tennessee and Missouri that we covered in last week's stories.
Trump’s followers are determined to attack trans people and anti-discrimination laws from every possible direction, and the need to fight back will be both desperate and constant. For the next four years people who love justice will be under more intense fire than we’ve seen since perhaps the “Massive Resistance” to school integration.
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“the “Big Trans” conspiracy theory that medical providers are only diagnosing transness to make themselves rich off of unnecessary treatment for a fictitious disorder”
Have these assholes paid attention to our dysfunctional healthcare system? Because medical providers don’t have to invent diagnoses to make money FFCS…
This is Nazism.