Reprinted from the Advocate.com.
A second federal judge has issued an injunction blocking the Trump administration’s efforts to rescind the Affordable Care Act’s protections against anti-LGBTQ+ discrimination.
The ruling came Wednesday in a case brought by Whitman-Walker Clinic in Washington, D.C., and other health organizations that serve many LGBTQ+ clients, represented by Lambda Legal and the law firm of Steptoe & Johnson.
Judge James E. Boasberg of the U.S. District Court for the District of Columbia granted the plaintiffs’ request for a preliminary injunction, which blocks enforcement of two key portions of a rule issued by the Department of Health and Human Services, headed by Secretary Alex Azar, in June governing the interpretation of section 1557 of the ACA. One of them narrowed the definition of sex discrimination and the other granted a broad exemption for health care providers to deny services by citing the provider’s religious beliefs.
“Denying an injunction would impede the public interest by threatening the health of LGBTQ individuals at large, some of whom will likely develop increasingly acute conditions on account of their delaying necessary care or refraining from transparent communication with providers out of fear of discrimination,” Boasberg wrote. “There is clearly a robust public interest in safeguarding prompt access to health care. The COVID-19 pandemic only reinforces the importance of that public interest and the concomitant need to ensure the availability and provision of care on a nondiscriminatory basis.”
This follows a ruling in August by Judge Frederic Block of the U.S. District Court for the Eastern District of New York in a suit brought by two transgender women, Tanya Asapansa-Johnson Walker and Cecilia Gentili, represented by the Human Rights Campaign and the law firm of Baker & Hostetler. Block granted an injunction blocking enforcement of the narrow definition of sex discrimination. While both cases still need to go through a full hearing in the courts, the injunctions mean that anti-LGBTQ+ discrimination is forbidden for now.
The rule issued by HHS in June undid an expansive definition of sex discrimination applied to the law when Barack Obama was president. The Obama-era rule guiding enforcement of the ACA’s prohibition on sex discrimination encompassed discrimination “on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping, or gender identity.”
It therefore banned discrimination against transgender Americans, plus discrimination against lesbian, gay, and bisexual people if it was rooted in sex stereotyping, and bias against cisgender women in the reproductive health provisions. The new rule would have interpreted sex discrimination as referring only to the binary understanding of biological sex.
Boasberg, like Block, invoked the Supreme Court’s June ruling in Bostock v. Clayton County, which held that federal law against sex discrimination in employment included discrimination based on sexual orientation and gender identity. The ruling “at the very least” called HHS’s narrow definition of sex discrimination into question, Boasberg wrote. The high court’s decision applied to Title VII of the Civil Rights Act of 1964, but there is no reason to believe the reasoning should be confined to that law, he noted.
He also said that incorporation of a broad exemption of faith-based health care providers from the rule would likely lead LGBTQ+ people to fear that they cannot receive services from those providers, thereby increasing demand at health groups that focus on the LGBTQ+ community. The Obama administration had not included a religious exemption in section 1557, saying that existing federal law was sufficient to protect faith-based health organizations — for instance, a Catholic hospital would not be forced to provide abortions.
Boasberg declined to block two other aspects of the new rule. He allowed HHS to lift a ban on categorical exclusion of care related to gender transition, as he agreed with HHS’s argument that even without this, there is no shortage of providers for these services. He also found that HHS was justified in lifting the requirement to issue notices of services for people with limited English proficiency, as it had found limited benefit in this.
Lambda Legal and its clients welcomed Boasberg’s ruling but vowed to go on fighting. “We are gratified that the court in an extensive and detailed decision put key aspects of the disastrous and discriminatory health care rule on hold while our challenge moves forward, particularly while in the midst of a pandemic,” Omar Gonzalez-Pagan, Lambda Legal senior attorney and health care strategist, said in a press release. “Health care is a human right and the Affordable Care Act sought to expand access to health care for everyone regardless of their sex, LGBTQ identity, or other characteristics. This administration’s health care discrimination rule is just another example of its disdain for LGBTQ lives and the law. The rule is unlawful and endangers people’s lives, plain and simple. A health care policy that is rooted in animus against LGBTQ people, particularly those who are most vulnerable among us like transgender people and those with limited English proficiency, cannot stand. We are gratified by this early victory and will continue to fight this rule until the end.”
“Access to competent and respectful health care services is critical for all transgender people,” Arianna Inurritegui-Lint, founder of Arianna’s Center and a member organization of the TransLatin@ Coalition, a plaintiff in the suit, said in the same release. “As transgender women, as immigrants, and people for whom English is not our first language, being able to see a doctor that treats us with respect is necessary for our survival. Today, I breathe a sigh of relief that the judge heard us and stopped dangerous aspects of this rule from going into effect. Tomorrow, we continue to fight.”
“The Affordable Care Act’s protections for LGBTQ people, and others who have faced discrimination in our nation’s health care systems, are essential for a healthier and stronger U.S.,” Whitman-Walker CEO Naseema Shafi added in an emailed statement. “These protections are particularly vital as we battle the COVID-19 pandemic. Whitman-Walker stands firmly on its core values of making health care a dignifying and respectful experience for any individual from any walk of life regardless of race, sexual orientation, gender identity, country of origin or immigration status. We are very gratified that Judge Boasberg has seen the grave harm that HHS’s unlawful, poorly reasoned rule would inflict on LGBTQ patients and health care providers like Whitman-Walker.”