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States Line Up to Oppose Trump Administration Health Bias Rule (1)

July 20, 2020, 6:27 PMUpdated: July 20, 2020, 8:09 PM

The legal challenges against the Trump administration’s rewrite of anti-discrimination protections in health care are mounting as an increasing number of states join the fight to regain safeguards for LGBTQ people and individuals seeking abortions.

A coalition of 22 states and the District of Columbia led by New York Attorney General Letitia James (D) filed a lawsuit Monday in the U.S. District Court for the Southern District of New York against the June 19 rule. The rule allows health-care workers, facilities, and insurance companies that receive federal funding to deny care or coverage to lesbian, gay, bisexual, and transgender people, or someone seeking to terminate a pregnancy.

The coalition is asking the federal district court to toss out the rule and declare it unlawful and unconstitutional.

The lawsuit is the fourth that has been filed challenging the Department of Health and Human Services’ rule, which eliminates gender identity and termination of a pregnancy from the agency’s 2016 definition of sex discrimination under Section 1557 of the Affordable Care Act.

The rule also removes sexual orientation from other HHS regulations in reference to nondiscrimination and does away with a requirement that forces health-care facilities to send patients notices of their nondiscrimination rights in 15 common languages.

“By rolling back rules that ensure the ACA protects all Americans, the president is unlawfully giving health-care providers and insurers license to deny care to LGBTQ+ individuals, those who do not speak English, and women,” James said in a statement. “It is never acceptable to deny health care to Americans who need it, but it is especially egregious to do so in the middle of a pandemic.”

Rule Redo

The HHS said it was changing a 2016 rule because it believed the agency had overstepped its statutory authority by expanding the definition of discrimination on the basis of sex to include gender identity and termination of pregnancy under Section 1557.

“The 2016 Rule’s provisions on sex discrimination imposed new requirements for care related to gender identity and termination of pregnancy that Congress has never required, and prevented covered entities from drawing reasonable and/or medically indicated distinctions on the basis of sex,” the agency said. “As a result, those provisions would have imposed confusing or contradictory demands on providers, interfered inappropriately with their medical judgment, and potentially burdened their consciences.”

Washington state sued the administration on July 16. Like the lawsuit filed by the state coalition Monday, Washington focused on how the rule will affect people who aren’t fluent in English in addition to LGBT people and individuals seeking an abortion.

The Boston Alliance of Gay, Lesbian, Bisexual and Transgender Youth is leading a challenge brought by LGBT rights groups in the U.S. District Court for the District of Massachusetts, and Lambda Legal is fighting on behalf of advocacy groups and health-care providers in the U.S. District Court for the District of Columbia.

Each lawsuit filed argues the rule is in direct conflict with the Supreme Court’s June 15 decision in Bostock v. Clayton County. The high court held discrimination on the basis of sexual orientation or transgender status counts as unlawful sex discrimination, but that case centered on anti-discrimination protections in the workplace under Title VII of the Civil Rights Act.

Section 1557 of the ACA is based in part on Title IX of the Civil Rights Act, which bars discrimination in education and federally funded programs. But courts typically look to Title VII when interpreting Title IX.

Seventeen states in the coalition and the District of Columbia are also part of the separate coalition that’s fighting at the Supreme Court to save the entire ACA from being struck down. The justices are expected to hear arguments in the fall in that case challenging the constitutionality of the law.

Think of this case “as death by a thousand lashes versus exploding the Affordable Care Act, which is what the president is trying to do through the other lawsuit that’s now before the Supreme Court,” California Attorney General Xavier Becerra (D) said in a call with reporters on Monday afternoon. “Either way, it’s very clear that President Trump is doing everything he can to dismantle health care for Americans who have it through the Affordable Care Act.”

The legal fight against the Section 1557 rule is one the coalition is ready to take all the way to the Supreme Court, Becerra said.

Causes of Action: Unlawful, exceeds statutory authority, and is arbitrary and capricious in violation of the Administrative Procedure Act; Violates the equal protection guarantee of the Fifth Amendment.

Relief: Declaratory and injunctive judgment, postponement of the rule’s effective date, order vacating and setting aside the rule, and award of attorneys’ fees.

Response: The HHS did not respond to a request for comment.

New York v. U.S. Dep’t of Health and Human Servs., S.D.N.Y., No. 1:20-cv-05583, complaint 7/20/20.

(Updated with additional information throughout.)

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; Brent Bierman at bbierman@bloomberglaw.com

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