Lambda Legal: Proposed New ACA Rule Critical First Step to Restore Protections for LGBTQ+ People

Lambda Legal today commended the Biden administration for proposing a new regulation that will protect LGBTQ+ people under the Affordable Care Act. The new proposed rule, announced by the U.S. Department of Health & Human Services (HHS), restores important protections for LGBTQ+ people under Section 1557 of the Patient Protection and Affordable Care Act (ACA), also known as the health care nondiscrimination law.

“Healthcare is a fundamental human right. Today’s announcement marks a pivotal moment in restoring regulatory nondiscrimination protections for those who need them most and ensuring the furthest reach possible of the Affordable Care Act’s health care nondiscrimination law,” said Omar Gonzalez-Pagan, Counsel and Health Care Strategist for Lambda Legal.

“The Trump administration wrongly and unlawfully sought to eliminate these much-needed protections for LGBTQ+ people and people with limited English proficiency, among others, by carving them out from the rule and limiting the scope of entities to whom the rule applied,” Gonzalez-Pagan added. “We’re grateful to the Biden administration for proposing to reinstate these important protections, as well as clarifying the broad scope of the rule to cover all HHS programs and activities and health insurers receiving federal funds. This rule will help members of the LGBTQ+ community — especially transgender people, non-English speakers, immigrants, people of color, and people living with disabilities — to access the care they need and deserve, saving lives and making sure health care professionals serve patients with essential care no matter who they are.”

Today’s announcement from HHS is a critical step forward in reversing some of the worst aspects of the discriminatory rule issued by the Trump administration which erased critical regulatory protections for LGBTQ+ people. The Trump administration’s rule also limited the remedies available to people who face health disparities, limited access to health care for people with Limited English Proficiency (LEP), and dramatically reduced the number of health care entities and insurance plans subject to the rule. Lambda Legal, along with a broad coalition of LGBTQ+ advocacy groups, had previously sued over the Trump administration’s discriminatory rule in the case Whitman-Walker v. HHS and secured a preliminary injunction preventing key aspects of the Trump rule from taking effect. These included elimination of regulatory protections for LGBTQ+ people and the unlawful expansion of religious exemptions.  The preliminary injunction in Whitman-Walker v. HHS remains in place.

Lambda Legal fought back against additional attempts by the Trump administration to invite discrimination against LGBTQ+ people. One such rule – called the “Denial-of-Care Rule” – invited discrimination in health care against LGBTQ+ people based on others’ religious or moral beliefs, contrary to governing law. In November 2019, as a result of Lambda Legal’s County of Santa Clara v. HHS lawsuit, a federal court vacated that rule. However, the case was later appealed to the 9th Circuit and the appeal remains pending.

“Over the coming weeks, we will review the language of the proposed rule and provide feedback to ensure the strongest nondiscrimination protections possible for LGBTQ+ people, people living with HIV, and people with limited English proficiency, among others. Indeed, today’s announcement marks only a first step. We need to see what the final rule will look like and call on HHS to take additional steps, including to drop the baseless appeal of our victory against the Trump administration’s Denial-of-Care Rule,” Gonzalez-Pagan said.

In 2019, the Trump administration also announced it would not enforce and would attempt to remove non-discrimination protections in the HHS Grants Rule, which prohibits discrimination by grantees who receive funding from HHS, which issues more than $500 billion dollars each year. Lambda Legal and co-counsel Democracy Forward, challenged the legality of these policy changes on behalf of Facing Foster Care in Alaska, Family Equality, True Colors United, and SAGE in the cases Family Equality v. Azar and Facing Foster Care in Alaska v. HHS. Although the Trump-era effort to strip these protections was rescinded earlier this month, HHS has yet to withdraw the illegal and harmful nonenforcement policy, leaving the people whom these federal programs are intended to help still without effective protection from discrimination.