Lambda Legal Sues HHS to Block Effort to Gut Protections for LGBTQ Patients

(Washington, D.C., June 22, 2020) — Today, Lambda Legal and Steptoe & Johnson LLP filed a lawsuit challenging the U.S. Department of Health and Human Services (HHS) recently published health care discrimination rule that purports to 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. 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.

“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,” said Omar Gonzalez-Pagan, Senior Attorney and Health Care Strategist for Lambda Legal. “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. Their actions are wrong, callous, immoral and legally indefensible. We will fight back.”

“This rule is antithetical to Whitman-Walker’s core values,” said Naseema Shafi, CEO of Whitman-Walker Health. “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 health care discrimination rule 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,” said Bamby Salcedo, President and CEO of the TransLatin@ Coalition. “The TransLatin@ Coalition and its affiliated organizations such as Arianna’s Center in Florida and Puerto Rico and the Fundación Latinoamericana de Acción Social (FLAS) 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.”

"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" said Adrian Shanker, Executive Director of Bradbury-Sullivan LGBT Community Center. "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."

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.  In May 2019, however, the Trump administration announced a proposed rule change designed to roll back these protections, and notwithstanding that multiple federal courts—including most recently, the U.S. Supreme Court—have interpreted sex discrimination protections to protect LGBTQ people. The proposed rule would carve-out LGBTQ people from the Affordable Care Act’s nondiscrimination protections, and 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.

On Friday, June 19, 2020, HHS published the health care discrimination rule, which is scheduled to go into effect August 18, 2020.

“Steptoe has a long history of fighting for the rights of the LGBTQ community, said Laurie Edelstein, partner at Steptoe & Johnson LLP. “We participated in the challenges to Proposition 8 in California and the military’s ban on transgender soldiers.  We also filed a brief on behalf of 40 brand-name businesses in the Masterpiece Cakeshop case advocating the importance of non-discrimination laws.  We are proud to join Lambda Legal in this latest battle to protect the right of LGBTQ people to receive health care free of discrimination.”

Lambda Legal has continued 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.

Read the Complaint here: https://www.lambdalegal.org/in-court/legal-docs/whitman_us_20200622_complaint

Read Lambda’s Legal comments opposing the Trump administration’s changes to the Section 1557 anti-discrimination rule when they were first proposed here: https://www.lambdalegal.org/in-court/legal-docs/20190813_hhs-1557-comments

See Lambda Legal’s Know Your Rights: Health Provider Discrimination, a resource for transgender and gender nonconforming people by visiting: https://www.lambdalegal.org/know-your-rights/article/trans-health-care-discrimination

If you experience discrimination in a health care setting, let us know via our Health Care Tracker by visiting https://www.lambdalegal.org/healthcarehelp