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High Court’s LGBT Jobs Ruling Eases Path for Health Bias Fight

June 16, 2020, 9:26 AM

Civil rights advocacy groups planning to challenge the Trump administration rule that eliminates anti-discrimination protections for LGBT people in health care just got a major boost from the U.S. Supreme Court.

In a ruling Monday, the justices said anti-discrimination protections in the workplace extend to lesbian, gay, bisexual, and transgender people. While the decision focused on the definition of the word “sex” under Title VII of the Civil Rights Act, legal scholars and attorneys said it will likely to have a direct effect on how sex is defined in a myriad of other laws, including the Affordable Care Act.

Groups already planning to sue over the rule that was finalized June 12 said the court’s decision will be the backbone for their legal fight to keep 2016 definition of sex under the ACA.

“We have a Supreme Court ruling to back up our arguments, one that has to be given weight and deference,” said Omar Gonzalez-Pagan, a senior attorney at Lambda Legal, an American civil rights organization planning to file a lawsuit in the coming days challenging the rule.

‘Girding for a Fight’

The Health and Human Services Department rule allows health care workers, doctors, hospitals, and health insurance companies that receive federal funding to refuse to provide or cover health-care services for LGBT people as well as for people who have had or are seeking abortions.

The agency eliminated a provision in a 2016 rule that redefined sex discrimination under Section 1557 of the ACA to include termination of pregnancy and gender identity.

Though the Supreme Court’s ruling Monday was focused on Title VII of the Civil Rights Act and Section 1557 of the ACA is based on Title IX, which prohibits sex discrimination in education and other activities that receive federal funding, legal scholars say courts look to one when interpreting the other.

“The Supreme Court’s decision, I think, makes challenges to the HHS rule unstoppable as to the LGBT discrimination part,” said Elizabeth Sepper, a health law professor at the University of Texas at Austin School of Law. “There’s no way that the Affordable Care Act doesn’t prohibit LGBT discrimination in health care after today.”

But Sepper doesn’t expect the HHS to just throw up its hands and toss out its rule.

“I suspect HHS is girding for a fight,” she said.

The agency acknowledged in its rule that the court’s decision on the scope of sex discrimination protections under Title VII is likely to have ramifications for the definition of sex under Title IX, but the HHS argues the laws are not one and the same.

“The binary biological character of sex (which is ultimately grounded in genetics) takes on special importance in the health context,” the HHS argued in the rule. “Those implications might not be fully addressed by future Title VII rulings even if courts were to deem the categories of sexual orientation or gender identity to be encompassed by the prohibition on sex discrimination in Title VII.”

Future Legal Battle

Legal scholars expect to see the fight over sex in Title IX play out in court.

The U.S. Court of Appeals for the Fifth Circuit is expected to review a ruling that partially struck down the 2016 rule that broadened the definition of sex in Section 1557 and pushed the agency to rewrite the rule. The court, however, agreed to put the case on hold until after the Supreme Court ruled on the definition of sex under Title VII.

The religious groups challenging the rule will likely try to argue that Title IX and Title VII are different, but it’s to be seen if the Fifth Circuit buys that argument, said Katie Keith, a health law professor at Georgetown University.

“If not, maybe there’s a Title IX question that goes up to the Supreme Court,” she said.

But if lower courts interpret other statutes similarly to how the Supreme Court interpreted Title VII, judges are going to have to take Justice Neil Gorsuch’s admonitions about protecting religious liberty particularly seriously, said John Bursch, senior counsel and vice president of appellate advocacy with Alliance Defending Freedom, a Christian legal advocacy group that supports religious liberty.

“It can’t be the case that hospitals force doctors to violate their religious conscience when it comes to dispensing medicine,” he said.

The HHS rule includes an explicit protection for conscience and religious freedoms. In addition to rolling back protections for transgender people, it also eliminated non-discrimination protections for people seeking abortions.

While the rule has gotten a lot of attention for the transgender provisions, it does a lot more, Keith said.

“The rule is pretty bad on a bunch of different dimensions,” she said.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Andrew Childers at achilders@bloomberglaw.com

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