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LGBTQ Groups Sue HHS Over Health-Care Protection Rollback (1)

June 22, 2020, 3:01 PM; Updated: June 22, 2020, 5:41 PM

The Trump administration can’t allow health-care providers to discriminate against LGBTQ people following a recent Supreme Court ruling, advocacy groups argued in a lawsuit Monday.

Because the Supreme Court held June 15 that “discrimination on the basis of sexual orientation or transgender status constitutes discrimination on the basis of sex,” the HHS is foreclosed from denying LGBTQ people Obamacare’s full anti-discrimination protection, the American Association of Physicians for Human Rights doing business as the Gay & Lesbian Medical Association, or GLMA: Health Professionals Advancing LGBTQ Equality, and the Association of LGBTQ Psychiatrists said in the complaint.

The lawsuit, filed in the U.S. District Court for the District of Columbia, is challenging a Department of Health and Human Services’ rule that would let health-care workers, health-care facilities, and health insurance companies that receive federal funding refuse to treat or cover services for LGBTQ people or for those seeking an abortion.

It’s the first suit filed challenging the rule though other LGBT and women rights groups, including the Human Rights Campaign, the Transgender Law Center, Harvard Center for Health Law and Policy Innovation, Transgender Legal Defense and Education Fund, and the National Women’s Law Center, also plan to sue.

The rule, issued June 12, eliminated the agency’s 2016 definition of sex discrimination under Section 1557 of the Affordable Care Act, which had been written to include termination of a pregnancy and gender identity.

“The elimination of this definition not only invites health care insurers and providers to discriminate against LGBTQ people seeking health care, but it also introduces substantial confusion among health care providers and insurers regarding their legal obligations and the right of the populations they serve to be free from sex discrimination, particularly in light of the Supreme Court’s decision in Bostock v. Clayton County,” the complaint said.

One Informs the Other

The high court’s decision in Bostock centered on the definition of sex under Title VII of the Civil Rights Act, which bans discrimination in employment. Section 1557 of the ACA is based on Title IX of the Civil Rights Act, which bans discrimination in education and other federally funded programs. But courts often look to one law when interpreting the other.

When the HHS issued the rule it acknowledged that the Supreme Court’s ruling on Title VII could affect Title IX. But the agency argued the two laws are different because the binary biological character of sex takes on special importance in the health context. The agency said it was issuing the rule to further its goal of reducing regulatory burdens under the ACA.

“Such a reconsideration and elimination of certain regulatory provisions, particularly regulations that the ACA itself did not require to be issued, neither ‘creates’ unreasonable regulatory barriers nor impedes timely access to healthcare,” the HHS said in the rule.

The plaintiffs, which also include two LGBT community organizations, two private health-care facilities, three physicians, and one behavioral health provider, argue the HHS’s rule allows for discrimination based on personal religious or moral beliefs, arbitrarily eliminates requirements that health-care providers notify patients about their rights, and unlawfully limits the number of health-care programs that have to comply with Section 1557.

“Although the Trump administration cannot change the law, by publishing this discriminatory rule on Friday they are creating chaos and confusion, they’re inviting discrimination against the LGBTQ community and denying patients knowledge of their rights and diminishing their access to care,” said Omar Gonzalez-Pagan, senior attorney and health-care strategist for Lambda Legal, which filed the case on behalf of the coalition of LGBT groups.

“It’s hurting access to care for LGBTQ people, people with limited English proficiency and many others,” Gonzalez-Pagan said on a call with reporters.

The coalition of LGBT groups challenging the rule also cited the coronavirus pandemic in accusing the administration of adopting positions that “fly in the face of its stated mission ‘to enhance and protect the health and well-being of all Americans by providing for effective health and human services.’”

“During these difficult times, Americans need the security and peace of mind that they will be able to access the health care they need,” they said in the complaint. “The government should be doing everything within its capacity to protect and preserve the safe and effective delivery of health care to all patients regardless of their sex, gender identity, sexual orientation, race, national origin, age, or disability.”

Causes of Action: Administrative Procedure Act, First Amendment’s free speech and establishment clauses; Fifth Amendment’s due process and equal protection clauses.

Relief: Judgment declaring the rule unlawful and unconstitutional; orders vacating the rule and preliminarily and permanently enjoining its implementation and enforcement; attorneys’ fees, costs, and expenses.

Response: An HHS spokesperson said the agency does not comment on pending litigation.

Attorneys: Lambda Legal Defense and Education Fund Inc. and Steptoe & Johnson LLP represent the organizations, health-care facilities and individual health-care providers.

The case is Whitman-Walker Health v. Dep’t of Health & Human Servs., D.D.C., No. 1:20-cv-01630, complaint filed 6/22/20.

(Updated with changes throughout, including a response from the HHS and additional context. )

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; Alexis Kramer at akramer@bloomberglaw.com

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