Lambda Legal Asks Court to Block Anti-Trans Health Care Rule

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July 9, 2020

Today, Lambda Legal asked a federal district court to prevent the recently published health care discrimination rule from the U.S. Department of Health and Human Services from going into effect. The rule, which seeks to exclude LGBTQ people and other vulnerable populations from regulatory protections under Section 1557 of the Affordable Care Act, is set to go into effect August 18, 2020.

“For years now, LGBTQ and immigrant communities have been under constant attack by the Trump Administration. It is particularly outrageous, however, for the administration to invite discrimination in health care in the middle of a pandemic,” said Bamby Salcedo, a transgender Latina woman and President of nonprofit TransLatin@ Coalition, one of plaintiffs of the lawsuit.

“We are putting a stop to the Trump administration’s immoral and legally indefensible attacks on our communities. Section 1557 of the ACA is clear in its inclusion of LGBTQ people and other vulnerable communities and the law is on our side. This rule cannot be allowed to go into effect, not even for a moment.” said Omar Gonzalez-Pagan, Senior Attorney and Health Care Strategist for Lambda Legal. “The Trump administration has a dismal record of handling the COVID-19 pandemic and a well-documented score of attacking the rights of LGBTQ people, particularly transgender persons. Now the Trump administration seeks to double-down on both by limiting access to health care for LGBTQ people and other vulnerable individuals in the midst of a global pandemic.”

On June 22, Lambda Legal and co-counsel at Steptoe & Johnson LLP filed suit challenging the HHS health care discrimination rule on behalf of Whitman-Walker Health, the TransLatin@ Coalition and its members, 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. The rule published June 19, 2020 attempts to exclude LGBTQ people and other vulnerable populations from the regulatory protections under Section 1557 of the Affordable Care Act, which prohibits discrimination based on gender identity, transgender status, or sex stereotypes as forms of sex discrimination, among other things. 

Although it cannot change the law, as multiple federal courts—including most recently, the U.S. Supreme Court in its ruling in Bostock v. Clayton County—have interpreted sex discrimination protections to include LGBTQ people, the health care discrimination rule would invite 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 would also limit the remedies available to people who face health disparities, limit the access to health care for people with Limited English Proficiency (LEP), and dramatically reduce the number of health care entities and insurance subject to the rule. 

“It is shameful for HHS to forge ahead with the implementation of their health care discrimination rule, which seeks to carve out LGBTQ from regulatory health care protections under the Affordable Care Act. If allowed to go into effect, the rule will wreak havoc and confusion, hurting most those vulnerable populations already suffering disproportionately at the hands of the pandemic. The safety and lives of LGBTQ people, but especially transgender people, hang in the balance.” added Gonzalez-Pagan.

“As a transgender woman and a Latina immigrant, I know firsthand how transgender people, particularly trans women of color like myself, and those with limited English proficiency have been turned away or discriminated against when seeking necessary health care. Now, the Trump Administration is inviting such discrimination against our community. Adequate and nondiscriminatory access to health care is a human right and can make the difference between life and death.” added Salcedo.

Lambda Legal continues to fight for LGBTQ people during this global public health crisis. In March, we filed a lawsuit against the Trump administration for refusing to enforce nondiscrimination protections for our communities in HHS-funded programs (see here). We also helped to lead a coalition of 183 organizations that called on Congress to ensure nondiscrimination protections for LGBTQ people in any COVID-19 response (see here).

Lambda Legal has successfully fought back against prior attempts by the Trump administration to invite discrimination against LGBTQ people. In November 2019, as a result of Lambda Legal’s lawsuit, a federal court vacated the Trump administration’s Denial-of-Care Rule, which invited discrimination in health care against LGBTQ people based on others’ religious or moral beliefs (see here).

Lambda Legal’s docket also has multiple examples of LGBTQ people confronting discrimination and bias in accessing health care, including a lesbian couple denied infertility treatment at a women’s health clinic (see here), a transgender man whose hospital refused to allow his surgeon to perform a routine hysterectomy (see here), and transgender people denied coverage for gender-affirming care (here and here). Lambda Legal has documented hundreds of other instances of discrimination, included many described in comments opposing a proposed rule to expand health workers’ and institutions’ ability to elevate their own religious interests over the needs of their patients (see here).  

Lambda Legal Senior Attorney and Health Care Strategist Omar Gonzalez-Pagan, Senior Counsel Karen Loewy, Senior Attorney Jamie Gliksberg, and Staff Attorney Carl Charles are joined by Steptoe’s Laurie Edelstein, Michael Vatis, Khristoph Becker, Johanna Dennehy, and Laura Lane-Steele as counsel on the brief.

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