Lambda Legal and Steptoe & Johnson LLP on Monday, June 22, filed a lawsuit challenging the U.S. Department of Health and Human Services’ recently published health care discrimination rule that would carve out LGBTQ people and “other vulnerable populations” from the protections of Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of sex, among other bases.
Lambda Legal promised to file suit a little more than a week ago, within hours of the Trump administration’s June 12 announcement that Section 1557 had been “finalized” without protections for LGBTQ people that the Obama administration had specifically included. The Human Rights Campaign has also pledged to sue the administration over Section 1557.
Three days after the administration announced the policy change, the U.S. Supreme Court issued its decision in three employment discrimination cases, consolidated as Bostock v. Clayton County, ruling that the term “sex” in Title VII of the Civil Rights Act includes sexual orientation and gender identity in prohibiting discrimination. Experts have said that while the Bostock ruling certainly sets precedent for determining whether anti-LGBTQ discrimination is prohibited in other federal statutes that prohibit discrimination based on sex, such an interpretation is not necessarily automatic.
The lawsuit, Whitman-Walker Clinic v. HHS, is filed on behalf of 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, and four individual doctors.
In announcing the lawsuit, Omar Gonzalez-Pagan, senior attorney and health care strategist for Lambda Legal, said, “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. 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.
“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,” Gonzalez-Pagan continued. “Their actions are wrong, callous, immoral and legally indefensible. We will fight back.”
Naseema Shafi, CEO of Whitman-Walker Health, added, “This rule is antithetical to Whitman-Walker’s core values. 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,” Shafi said.
Bamby Salcedo, president and CEO of the TransLatin@ Coalition, stressed that the Trump administration’s version of Section 1557 “will hurt marginalized communities who already experience barriers to care, but especially those of us who are transgender, non-English speakers, immigrants, people of color and people living with disabilities, and will have an even more serious impact on those of us who hold intersectional identities.”
Salcedo said that The TransLatin@ Coalition and its affiliated organizations. including Arianna’s Center in Florida and Puerto Rico and the Fundación Latinoamericana de Acción Social in Texas, “exist because of the already present challenges in our communities and because everyone deserves easy access to care that is respectful of who we are, compassionate and competent. Our lives depend on it and we’re going to fight for it.”
And Bradbury-Sullivan LGBT Community CenterExecutive Director Adrian Shanker said, “The Trump administration’s final rule would have you think that decades of healthcare bias against LGBTQ people never happened. But not so. Healthcare non-discrimination protections are essential to ensure that LGBTQ people can receive the healthcare we need to survive. That’s why Bradbury-Sullivan LGBT Community Center is standing up to the Trump administration on behalf of our community. Healthcare is a human right and LGBTQ people deserve non-discriminatory healthcare.”
Background on ACA and Section 1557
In 2016, the Obama administration finalized a rule implementing the nondiscrimination provisions of the Affordable Care Act — also known as Section 1557—that prohibit discrimination based on gender identity, transgender status or sex stereotypes as forms of sex discrimination. But in May 2019, the Trump administration announced a proposed rule change designed to roll back these protections, regardless of the fact that numerous federal courts had already interpreted sex discrimination protections to protect LGBTQ people. The Trump administration version carved out LGBTQ people from the ACA’s nondiscrimination protections and allowed health care workers, doctors, hospitals and health insurance companies that receive federal funding to refuse to provide or cover health care services critical to the health and wellbeing of LGBTQ people, such as gender-affirming and reproductive care.
The proposed rule also limited the remedies available to people who face health disparities, limited the access to health care for people with limited English proficiency and dramatically reduced the number of health care entities and insurance subject to the rule.
HHS published the health care discrimination rule on June 19, scheduling it to take effect Aug. 18.
In addition to Gonzalez-Pagan, Lambda Legal Senior Counsel Karen Loewy, Senior Attorney Jamie Gliksberg and Staff Attorney Carl Charles are litigating the case, along with Steptoe’s Laurie Edelstein, Michael Vatis, Khristoph Becker, Johanna Dennehy and Laura Lane-Steele as counsel on the brief.
— Tammye Nash