Several LGBTQ+ organizations that provide health care have filed suit against Donald Trump’s administration over the revocation of nondiscrimination provisions in the Affordable Care Act, and the suit invokes the recent Supreme Court ruling on anti-LGBTQ+ discrimination.
A rule finalized by the Department of Health and Human Services this month rescinds one issued by President Barack Obama’s administration in 2016 that included gender identity in the definition of sex discrimination, therefore banning anti-transgender bias in health care. The now-revoked rule also banned discrimination based on sexual orientation when such discrimination drew on sex stereotyping, and included provisions banning bias in reproductive health care and against people who face health disparities or have limited English proficiency.
The Trump administration rule, which in addition to ditching all those protections offers health care providers extensive freedom to discriminate if they cite religious or moral objections to a procedure, is set to go into effect August 18. But the suit, filed Monday in U.S. District Court for the District of Columbia, seeks to keep it from being implemented.
“While HHS’s health care discrimination rule cannot change the law, it creates chaos and confusion where there was once clarity about the right of everyone in our communities, and specifically transgender people, to receive health care free of discrimination,” Omar Gonzalez-Pagan, senior attorney and health care strategist for Lambda Legal, said in a press release. Lambda Legal and the D.C. law firm of Steptoe & Johnson are representing the groups.
“Today, Lambda Legal, a broad coalition of LGBTQ groups, and the people our clients serve say ‘enough’ to the incessant attacks from the very agency charged with protecting their health and well-being,” Gonzalez-Pagan continued. “For years, the Trump administration has utilized HHS as a weapon to target and hurt vulnerable communities who already experience alarming rates of discrimination when seeking care, even now, during a global pandemic. Their actions are wrong, callous, immoral and legally indefensible. We will fight back.”
The organizations filing the suit are Whitman-Walker Health, the TransLatin@ Coalition and its members (including leaders of affiliated organizations like Arianna’s Center in Florida), Bradbury-Sullivan LGBT Community Center, the Los Angeles LGBT Center, GLMA: Health Professionals Advancing LGBTQ Equality, AGLP: The Association of LGBTQ Psychiatrists. Four individual doctors have joined it as well.
“This rule is antithetical to Whitman-Walker’s core values,” Naseema Shafi, CEO of Whitman-Walker Health, said in the release. “Health care systems should be safe places for everyone to seek care; where people’s identities are affirmed, regardless of race, religion, sexual orientation, gender identity, disability, national origin, or other characteristics. The federal government should be a partner in addressing the repeated violence perpetrated against Black and brown communities, against immigrants, and against transgender people, and today’s action is about holding the administration accountable for the safety, well-being and civil rights of our communities.”
The suit names as defendants HHS and its secretary, Alex Azar; Roger Severino, director of the HHS Office for Civil Rights; and Seema Verna, administrator for the Centers for Medicare and Medicaid Services, part of HHS.
HHS adopted the revised rule “with next-to-no legal, medical, or reasoned policy foundation, and contrary to the opinions of professional medical and public health organizations,” the suit states. It relies “on essentially one federal district court opinion,” the suit continues; a judge in Texas last year asserted that the Obama-era rule violated health care providers’ religious freedom.
The suit draws on the recent Supreme Court ruling that found that the ban on sex discrimination in the Civil Rights Act of 1964 applied to discrimination based on sexual orientation and gender identity. While that ruling applies only to employment discrimination, it should inform court rulings on health care and other aspects of life, the lawsuit asserts.
The high court’s “conclusion that discrimination ‘on the basis of sex’ encompasses claims of discrimination based on transgender status and sexual orientation affirms the validity of the substantial body of case law that formed the basis of the 2016 Final Rule,” the complaint states.
“The Revised Rule’s repeal of the definition of ‘on the basis of sex’ and elimination of the protections for LGTBQ people against discrimination is contrary to law and will invite health care insurers and providers to discriminate against LGBTQ people seeking health care,” the complaint adds. “It also introduces substantial confusion among health care providers and insurers regarding their legal obligations and the right of the populations they serve to be free from discrimination, particularly in light of the Supreme Court’s ruling.”