Court Blocks Trump Removal of LGBTQ-Bias Shields in Health Care

FILE- In this June 12, 2016 file photo, a couple embraces outside the Stonewall Inn in New York. On Thursday, June 6, 2019, Commissioner James O’Neill apologized for the 1969 police raid at the Stonewall Inn, which catalyzed the modern LGBT rights movement. O’Neill said Thursday that “the actions taken by the NYPD were wrong” at the gay bar in New York City’s Greenwich Village. He called the actions and laws of the time discriminatory and said, “For that, I apologize.” (AP Photo/Mary Altaffer)

WASHINGTON (CN) — A federal judge has stopped the Trump administration from enforcing a rule change that would let health care providers deny medical services to LGBTQ patients on the grounds of religion. 

On the heels of a Supreme Court ruling that banned discrimination based on sexual orientation or gender identity in the workplace, U.S. District Judge James E. Boasberg in Washington handed down his ruling late Wednesday in a hefty 101 pages.

“Specifically, there is ‘substantial evidence’ that HHS’s newly and explicitly incorporated religious exemption will cause patients to fear discrimination at the hands of religiously affiliated providers, once again ‘leaving little doubt as to causation,’” Boasberg wrote. 

Clinics and LGBT advocates brought the suit here in June, just days after the high court ruled in Bostock v. Clayton County, Georgia. They argued revisions by the Trump administration to Obama-era regulations prohibiting discrimination under the Affordable Care Act were unconstitutional. 

A federal judge in New York last month blocked the Trump administration from enforcing the 2020 final rule based on the recent Supreme Court ruling, but did not take up the issues raised in Washington federal court. 

The preliminary injunction granted Wednesday does not apply to the full 2020 rule. Instead, it blocks the elimination of “sex stereotyping” from the Obama-era rule’s definition of “discrimination on the basis of sex” and exemptions for religious organizations that plaintiffs argued will open the door to discrimination of LGBTQ patients. 

Backed by the American Association of Physicians for Human Rights, the clinics argue that any limitation on health care services to Americans — regardless of sexual orientation or gender identity — is a failure by the government in the midst of the coronavirus pandemic. 

The assertion landed favorably with Boasberg, who was appointed by President Barack Obama. 

“The Covid-19 pandemic only reinforces the importance of that public interest and the concomitant need to ensure the availability and provision of care on a nondiscriminatory basis,” the judge wrote. 

The clinics, along with a cohort of individual physicians and LGBTQ-services organizations, argued that Trump’s revised rule is “fatally flawed,” and forces them to provide costlier and more involved treatment because patients are not fully transparent with external providers about their medical history. 

Whitman-Walker Clinic, a nonprofit community health center in Washington and the lead plaintiff in the case, warned that LGBTQ patients will attempt to hide their gender and sexual identities to avoid discrimination when seeking medical services, or even delay necessary care and preventative screenings. 

“The consequences for the health-provider Plaintiffs are evident: a patient pool with conditions that are increasingly advanced at diagnosis and less responsive to treatment, thus requiring the organizations to expend resources on costlier and more challenging care, especially when administered in cases of emergency,” Boasberg wrote.

Though the Justice Department called any claims of discrimination “unduly speculative,” the judge concluded that the genuine fear of discrimination is enough to merit injunctive relief. 

“Far from resting on ‘mere speculation about the decisions of third parties’ — viz., LGBTQ patients — therefore, Plaintiffs’ theory ‘relies instead on the predictable effect of Government action’ on such decisions,” Boasberg wrote. 

The LGBTQ clinics will need to cross a higher threshold in the months ahead to convince the judge to permanently overturn the 2020 rule in his final decision. 

Representatives for the Office of Civil Rights at the Department of Health and Human Services did not provide comment as of press time. 

The Lambda Legal Defense and Education Fund, representing the clinics, praised the decision by Boasberg to put an immediate stop to what it said was the Trump administration seeking to carve out LGBTQ people and other vulnerable populations from the ACA’s protections. 

“This administration’s health care discrimination rule is just another example of its disdain for LGBTQ lives and the law,” Omar Gonzalez-Pagan, a Lambda Legal attorney on the case, said in a statement. “The rule is unlawful and endangers people’s lives, plain and simple.”

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