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The United States Law Week

LGBT Health Coverage Seen at Risk as Justices Weigh Bias Cases

Oct. 8, 2019, 9:32 AM

Civil rights cases before the U.S. Supreme Court this term center on the scope of anti-discrimination protections for lesbian, gay, bisexual, and transgender people in the workplace, but the court’s ruling could also have a dramatic impact on their access to health care.

The Supreme Court is poised to decide in separate cases whether Title VII of the Civil Rights Act, which prohibits discrimination on the basis of sex in employment, covers sexual orientation and gender identity. Because health benefits are tied to employment, attorneys say LGBT employees could be at risk of losing their health coverage if the court says that’s not what Congress meant by sex when it enacted the law in 1964.

It’s possible that some private employers will attempt to rescind health benefits for same-sex spouses or transition-related health care for transgender employees, including gender affirmation surgeries, said Julie Wilensky, a senior staff attorney at the National Center for Lesbian Rights.

While some states such as California have insurance laws prohibiting discrimination against same-sex spouses and transgender people in insurance plans, Wilensky said most states do not have such protections.

But conservatives say it should be lawmakers—not the court—who decide if LGBT people are protected from being discriminated against by their employer or their employer-sponsored health care plan.

“We believe Congress or the state legislatures are the branch of government that’s responsible for making the law, so they are in the best position to address this policy concern,” Stephanie Taub, senior counsel with the religious legal group First Liberty Institute, said when asked to respond to concerns that LGBT people could lose access to health care.

Employers would not be forced to discriminate against LGBT people if the court rules sexual orientation and gender identity are not covered under the law, but they would be allowed to do so, said Chase Strangio, deputy director for transgender justice at the American Civil Liberties Union LGBT & HIV Project.

“I think that you could see government-provided health care changing both at the federal and the state level,” he said. “I think this would have sweeping consequences on the authority of trans people to advocate for health protections under the Constitution as well as under the Affordable Care Act.”

The ACLU is representing Aimee Stephens, a transgender woman who argues in one of three cases before the justices Oct. 8 that she was unlawfully fired from her job as a funeral director after she informed her employer she would be living and working openly as a woman.

Legal scholars say a decision against her could bolster the Trump administration’s efforts to roll back protections for LGBT people now provided under former President Barack Obama’s signature health-care law.

‘On the Basis of Sex’

Section 1557 of the Affordable Care Act prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in health programs that receive funding from the Department of Health and Human Services.

The Department of Health and Human Services in 2016 defined discrimination “on the basis of sex” under Section 1557 in a subsequent regulation to cover termination of pregnancy, sex-stereotyping, and gender identity, which it defined as one’s internal sense of being “male, female, neither, or a combination of male and female.”

But the HHS rolled out a proposal in May to wipe out that definition for Section 1557. The agency said it is responding to a federal district court’s decision to temporarily block the HHS from enforcing the ban on sex discrimination based on gender identity and termination of a pregnancy.

“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” Roger Severino, the director of HHS’s Office for Civil Rights, said in a statement at the time.

Citing the likelihood that the Supreme Court would be addressing the issue in the near future, the Trump administration decided not to propose its own definition of “sex” in its proposed changes to the ACA provision.

But because the proposed rule is likely to face a legal challenge once finalized, a ruling in favor of the employers could give the administration a leg up when defending its plan in court.

“It would validate it,” said Sara Rosenbaum, a health policy professor at George Washington University. “They would presumably say that the Supreme Court has closed the door on interpreting the word ‘sex’ to include gender or sexual orientation.”

Reading the Tea Leaves

But the advocates say there are a range of possible outcomes.

“The proposed 1557 rule anticipates ramifications from the Supreme Court’s holdings in the Title VII cases, but it doesn’t say how HHS will respond to it,” the National Center for Lesbian Rights’ Wilensky said.

“A Supreme Court decision in favor of employees in the Title VII cases would eviscerate HHS’s legal analysis in the proposed rule, which ignores the weight of authority of federal courts interpreting the prohibition on sex discrimination in Section 1557.”

But attorneys for the Foundation for Moral Law argue the term “sex” should not be stretched to include sexual orientation, something they say the framers of the Civil Rights Act “never intended, never envisioned, and would have considered repulsive and horrifying.”

“This is not just giving statutory language an ‘expanded interpretation;’ it is turning the word ‘sex’ on its head,” the Alabama-based Christian legal advocacy group said in a brief to the court.

LGBT rights advocates, however, say the employees are the textualists in this case.

“There’s a very straightforward textual argument,” ACLU’s Chase Strangio said. “Title VII was written broadly. It is not about what Congress intended in 1964; it’s about the broad language they chose to use.”

It’s nearly impossible to predict what the court will do, attorneys say.

But if the justices rule LGBT workers are a protected class under Title VII, religious rights advocates are pushing the court to hold that religious employers can maintain faith-based codes of employee conduct.

“Whichever way the court rules, we ask that they remember the impact on churches, synagogues, mosques, and other religious ministries and nonprofits,” Taub said.

The cases are Bostock v. Clayton County, Ga., U.S., No. 17-1618, argument 10/8/19, Altitude Express, Inc. v. Zarda, U.S., No. 17-1623, argument 10/8/19 and R.G. & G.R. Harris Funeral Homes v. EEOC, U.S., No. 18-107, argument 10/8/19.

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