A federal judge Monday issued an injunction preventing the Trump administration from enforcing its interpretation of the sex discrimination provision of the Affordable Care Act — an interpretation that erases protections for LGBTQ+ people — while lawsuits on the matter are heard.
The Department of Health and Human Services had issued a rule in June, scheduled to go into effect Tuesday, undoing 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 rule put forth by HHS in June would have interpreted sex discrimination as referring only to the binary understanding of biological sex.
But Judge Frederic Block of the U.S. District Court for the Eastern District of New York ruled Monday that such a definition is at odds with the recent Supreme Court decision on employment discrimination. The high court ruled in June in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964, in banning sex discrimination, also banned discrimination based on sexual orientation and gender identity.
“The Court concludes that the proposed rules are, indeed, contrary to Bostock and, in addition, that HHS did act arbitrarily and capriciously in enacting them,” Block wrote. “Therefore, it grants plaintiffs’ application for a stay and preliminary injunction to preclude the rules from becoming operative.”
The decision came in a suit filed by two trans women, Tanya Asapansa-Johnson Walker and Cecilia Gentili, represented by the Human Rights Campaign and the law firm of Baker & Hostetler. Both women have legal standing to sue and are likely to succeed on the merits of the case, Judge Block wrote.
Whitman-Walker Clinic, which serves LGBTQ+ people in and around Washington, D.C., the TransLatin@ Coalition, and several other organizations filed a separate suit against the rule. They are represented by Lambda Legal and the law firm of Steptoe & Johnson. There was a hearing August 3 in U.S. District Court for the District of Columbia on their request for a preliminary injunction, and a decision is pending. Their suit addresses not only HHS’s narrow definition of sex discrimination but also its revocation of a provision assuring access to health care for people with limited English proficiency and its addition of one allowing providers to deny care based on religious objections.
“This is a crucial early victory for our plaintiffs, Tanya and Cecilia, and for the entire LGBTQ community, particularly those who are multiply marginalized and suffering disproportionally from the impacts of the twin pandemics of COVID-19 and racialized violence,” HRC President Alphonso David said in a press release. “We are pleased the Court recognized this irrational rule for what it is: discrimination, plain and simple. LGBTQ Americans deserve the health care that they need without fear of mistreatment, harassment, or humiliation.
“This failed attempt to callously strip away nondiscrimination health care protections is merely the latest in a long line of attacks against the transgender community from the Trump-Pence team. Today’s victory is a step in the right direction, and we at the Human Rights Campaign will continue to fight the administration’s attempts to dehumanize and stigmatize the LGBTQ community. This rule should be permanently tossed out and we will fight in court to ensure that it is.”
In a Lambda Legal press release, Senior Attorney and Health Care Strategist Omar Gonzalez-Pagan added, “We congratulate Tanya Asapansa-Johnson Walker, Cecilia Gentili, HRC and their co-counsel on this important victory in the fight against the Trump administration’s failed public health policy, and we look forward to a decision in our case challenging the health care discrimination rule. The safety and lives of LGBTQ people, but especially transgender people, hang in the balance.”