The Trump administration is facing legal action for rolling back transgender health care protections “with next-to-no legal, medical, or reasoned policy foundation” for denying transgender patients’ rights.
A coalition of LGBTQ organizations has filed a lawsuit against the Department of Health and Human Services (HHS) for rolling back Obamacare protections that ban health care providers from discriminating against transgender people, saying that it should be nullified by a recent LGBTQ win at the Supreme Court.
At issue is Section 1557 of the Affordable Care Act (also known as Obamacare), which bans discrimination in health care “on the basis of sex.” The Obama administration interpreted that to include discrimination against transgender people, since it is impossible to discriminate against someone because their sex assigned at birth doesn’t match their gender identity without discriminating against them “on the basis of sex.”
For several years, the Trump administration has tried to roll back that interpretation of the law, and earlier this month announced a new rule that defines “discrimination on the basis of sex” as “sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.” The goal is to make it easier for health care providers to deny care to transgender people if they say that it’s against their religion.
But just three days after the rule was announced, the Supreme Court ruled in Bostock v. Clayton County that the ban on discrimination “because of sex” in Title VII in the Civil Rights Act of 1964 includes anti-LGBTQ discrimination when it comes to employment.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” the Court’s decision in Bostock said. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The LA LGBT Center, the Association of LGBTQ Psychiatrists, Whitman-Walker Health, and several other organizations filed a lawsuit this week arguing that the Trump administration’s rollback of transgender rights violates the Supreme Court’s ruling in Bostock and asked the court to overturn the HHS rule.
“These exemptions invite individual health care providers, health care entities and insurers across the country to opt out of treating patients, including many transgender patients, if they believe doing so would compromise their faith,” the lawsuit says.
The lawsuit also alleges that Trump’s HHS rule violates the constitutional guarantees of equal protection, due process, free speech, and the Establishment Clause, which bans the government from favoring certain religions over others because it creates “expansive religious exemptions for health care providers, plans, and employees at the expense of third parties” like LGBTQ people and health care workers who don’t discriminate.
The groups filing the lawsuit stressed that the law puts transgender people’s health in jeopardy.
“Too often we learn of examples, such as a transgender patient who is subjected to hostile questions about who they are when seeking help from a hospital emergency room for deep pain, questions that may have long-term impact on whether that person seeks care when they are in pain again,” Naseema Shafi of Whitman-Walker Health told the Washington Blade.
The lawsuit also accuses the Trump administration of violating the Administrative Procedure Act. The Act provides guidelines for how administrative bodies can pass rules that interpret laws passed by Congress, and the lawsuit says that the Trump administration failed to “account properly for the costs and benefits” of the rule change.