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Biden’s LGBTQ Health Bias Bans Face Rash of Legal Roadblocks

Jan. 7, 2022, 10:35 AM

A Biden administration proposal to stop qualified health insurance plans from discriminating against gay and transgender people is the latest regulatory step in an ongoing fight over enacting broader health-care protections for LGBTQ people.

A batch of legal challenges is already in play, including two court orders that could block the Department of Health and Human Services from enforcing a more sweeping rule against certain medical providers before it’s even been formally proposed.

In the more expansive proposed rule, due in April, the HHS is expected to ban health-care providers and health programs that receive federal funding from discriminating against people based on their sexual orientation or gender identity under Section 1557 of the Affordable Care Act.

It’s the latest version of a rule that has ping-ponged back and forth in scope from one administration to another and been subject to several legal challenges since the Obama administration first expanded the definition of “sex” under the ACA in 2016 to include gender identity, sex stereotypes, and termination of a pregnancy.

The Trump administration issued a rule of its own in 2020 erasing those protections, but several of those changes were blocked by federal courts, and the protections for transgender people were reinstated.

The Biden administration’s interpretation has prompted legal action even though the formal rule proposal is months away.

“Of course they’re going to sue over the rule,” said Katie Keith, director of the health policy and the law initiative at Georgetown Law’s O’Neill Institute.

In May 2021, that HHS said in a notice that it will interpret “sex” in Obamacare’s anti-discrimination protections to include discrimination on the basis of sexual orientation and gender identity. That means health-care providers who accept federal money could face penalties for unlawful discrimination if they refuse to perform a gender transition procedure. However, the HHS Office for Civil Rights said it will comply with existing court orders and the Religious Freedom Restoration Act, which prohibits agencies from substantially burdening a person’s exercise of religion.

Three lawsuits have since been filed—in Tennessee, North Dakota, and Texas—challenging that reading of the law. And two existing court orders already block the HHS OCR from enforcing it against thousands of providers across the country once it’s finalized.

Still, last week the administration moved ahead with a more narrow anti-discrimination measure that applies only to qualified health plans offered on the state and federal exchanges. That rule could face legal challenges of its own once finalized.

Injunctions Not Limited

Federal district court judges in Texas and North Dakota issued permanent injunctions blocking the HHS from forcing certain religiously affiliated health-care systems, and members of certain medical and employer groups, to perform or provide insurance coverage for gender-transition procedures under Section 1557’s anti-discrimination protections. The order from the federal district court in Texas went a bit further and included abortion.

Organizations involved in the two consolidated disputes in North Dakota included the Catholic Medical Association and the Catholic Benefits Association, which has 880 employer members and 5,000 member Catholic parishes, according to court filings. The Christian Medical & Dental Associations, which include over 17,000 health-care professionals, was a party involved in the dispute in Texas.

The Biden administration has appealed both court orders. The U.S. Court of Appeals for the Eighth Circuit heard arguments on Dec. 15. The U.S. Court of Appeals for the Fifth Circuit, meanwhile, has not yet released a briefing schedule for that appeal, which was noticed on Nov. 26.

The injunctions are not limited to Obama’s 2016 or the Trump administration’s 2020 rule, said Luke Goodrich, vice president and senior counsel at the Becket Fund for Religious Liberty, who represented plaintiffs in both cases, including the Christian Medical & Dental Associations.

“They enjoin HHS itself from interpreting or enforcing Section 1557 of the Affordable Care Act, so it doesn’t really matter what rule HHS comes out with in 2022, 2023 or 2024,” he said.

“These injunctions will still be in place, assuming the courts of appeal affirm, and they will still protect all the plaintiffs in the cases from any sort of interpretation or enforcement from HHS,” Goodrich said.

The court orders do not, however, prevent LGBTQ people from suing any of those providers if they experience discrimination, said Sarah Warbelow, legal director of the Human Rights Campaign.

Advocates Want More

The proposed rule the Centers for Medicare and Medicaid Services (CMS) released on Dec. 30 bans qualified health insurance plans offered on the state and federal exchanges from discriminating against gay and transgender people.

When the Biden administration releases its broader rule on Section 1557 in April, LGBTQ advocates want it to include what the Obama administration left out in 2016 — explicit protections for sexual orientation. The 2016 rule said it was sex discrimination to discriminate against transgender people but did not go so far as to say it was discrimination to discriminate against LGBTQ people, Warbelow said.

Advocates also want to see greater clarity on when denial of care and coverage constitutes discrimination.

Opponents say the April rule is only a formality and that HHS has been enforcing the 2016 rule, which the Trump administration tried but failed to repeal, for some time.

“Alliance Defending Freedom is already challenging the unlawful gender identity mandates that the Biden administration announced months ago that it is imposing through the Affordable Care Act,” said Matt Bowman, the organization’s senior counsel, citing the agency’s May 10 notice.

The group has asked federal district courts to block any future enforcement of those mandates in the lawsuits brought in Tennessee and North Dakota, Bowman said.

“We represent conscientious doctors, and religious businesses and nonprofits, who are already being forced to provide gender transition activities and health coverage in violation of their medical judgment and their religious belief,” Bowman said. “And any future mandate along the same lines by [HHS] Secretary Becerra against our clients is something we are going to ask the courts to stop.”

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

To contact the editor responsible for this story: Brent Bierman at bbierman@bloomberglaw.com, Melissa B. Robinson at mrobinson@bloomberglaw.com

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