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LGBTQ Health-Care Providers Want New Discrimination Rule Blocked

July 10, 2020, 4:59 PM

A new Health and Human Services rule strips gay and transgender people of protections from discrimination in health care and should be blocked, health-care providers in Washington and Los Angeles and others told a federal court.

Providers, community groups, professional associations, and individuals sued HHS over a new 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 termination of pregnancies.

Whitman-Walker Clinic, Inc. and Los Angeles LGBT Center, which provide health-care services to lesbian, gay, bisexual, transgender, and queer people, and others filed a motion Thursday in the U.S. District Court for the District of Columbia to prevent the rule from taking effect while the litigation is pending. Enforcement of the rule is slated to begin Aug. 18.

Section 1557 of the Affordable Care Act prohibits discrimination based on sex in the provision of health-care services. The Obama administration issued a rule clarifying that discrimination based on sex included discrimination against people based on their sexual preferences, gender identity, or use of abortion services.

The Trump administration rewrote the rule to eliminate that definition. It published the new rule just days before the U.S. Supreme Court held that discrimination based on sex, for purposes of Title VII’s prohibition on workplace discrimination, includes “discrimination on the basis of sexual orientation or transgender status.”

An injunction prohibiting HHS from enforcing the rule is needed to prevent confusion and ensure LGTBQ people don’t delay health care, especially in the midst of the global coronavirus pandemic, the groups said in their brief supporting the motion.

The groups are likely to win their case because the rule is a “paradigmatic example of arbitrary and capricious agency action” for two reasons, they said. First, the rule undermines Section 1557’s purpose, which is to make certain everyone has access to health care, by creating barriers to access. Second, the agency didn’t consider the harm the rule will do to LGBTQ people, they said.

The harm, moreover, will be immediate and irreparable if the rule takes effect in August, the groups said.

Steptoe & Johnson LLP and Lambda Legal Defense & Education Fund represent the plaintiffs.

Boston Alliance of Gay, Lesbian, Bisexual and Transgender Youth; Callen-Lorde Community Health Center; Campaign for Southern Equality; Darren Lazor; Equality California; Fenway Health; and Transgender Emergency Fund of Massachusetts filed a separate suit Thursday in the U.S. District Court for the District of Massachusetts. They also seek a declaration invalidating the rule.

Hogan Lovells US LLP, Harvard Law School’s Center for Health Law & Policy Innovation, National Women’s Law Center, and Transgender Legal Defense & Education Fund Inc. represent the plaintiffs in that case.

HHS doesn’t comment on pending litigation.

The case is Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Human Servs., D.D.C., No. 20-cv-1630, motion filed 7/9/20.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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