Federal Judge Blocks Trump Administration’s Transgender Health Care Rollback

The National Center for Transgender Equality and the Human Rights Campaign gather on Pennsylvania Avenue in front of the White House in Washington in 2018. (AP Photo/Carolyn Kaster)

(CN) — A federal judge in New York Monday blocked new rules proposed by the Trump administration that would have removed anti-discrimination protections for transgender patients in programs funded by the Affordable Care Act.

U.S. District Court Senior Judge Frederic Block ruled Monday afternoon that the Department of Health and Human Services’ planned 2020 rules change, which would have reversed the department’s existing prohibition on discrimination on the basis of gender identity, ran contrary to the Supreme Court’s recent decision in Bostock v. Clayton County

In Bostock, the high court ruled 6–3 that discrimination based on gender identity and sexuality constituted discrimination on the basis of sex. Block, a Bill Clinton appointee in the U.S. District Court for the Eastern District of New York, wrote in his opinion that the department had continued working toward enacting rules contrary to that decision even two months after the fact.

“HHS knew that the case was pending and would have ‘ramifications’; it must also have known that a decision would be handed down before the end of the Supreme Court’s term. It then had an (admittedly brief) opportunity to re-evaluate its proposed rules after the case was decided contrary to its expectations,” Block wrote.

“Instead, it did nothing. The timing might even suggest to a cynic that the agency pushed ahead specifically to avoid having to address an adverse decision,” he continued. “Whether by design or bureaucratic inertia, the fact remains that HHS finalized the 2020 Rules without addressing the impact of the Supreme Court’s decision in Bostock.”

The new rules, set to go into effect Tuesday, would have reversed a part of the agency’s 2016 rules, which included discrimination based on gender identity and sexual orientation as sex discrimination under Title VII and Title IX of the Civil Rights Act of 1964. In Bostock, the high court affirmed that position as to Title VII.

The two transgender women who brought the case had been turned away, mocked or physically abused in their pursuit of medical care and argued that Health and Human Services had acted arbitrarily and capriciously in enacting rules that would allow such conduct. Block agreed, noting that the reasoning the agency had used to justify its proposed rules was “based upon its pre-Bostock understanding.”

“An agency action can be ‘arbitrary and capricious’ for many reasons, but one is that the agency has ‘entirely failed to consider an important aspect of the problem,’” Block wrote, citing the 1983 Supreme Court decision Motor Vehicle Mfrs. Ass’n. v. State Farm. “The unmistakable basis for HHS’s action was a rejection of the position taken in the 2016 Rules that sex discrimination includes discrimination based on gender identity and sex stereotyping,” he continued. 

Bostock, he said, should have factored into the department’s rulemaking because it directly contradicted that goal.

The case is one of several brought to challenge the proposed rules since the Trump administration announced them in June. They have stressed the fact that the rule change would deprive transgender Americans of health care in the midst of the global Covid-19 pandemic. The proposed rule change faced criticism from the American Medical Association, as well as LGBTQ and human rights organizations. 

UCLA law professor Christy Mallory, who serves as legal director for the school’s Williams Institute — a think tank on sexual orientation and gender identity law and policy — said she was impressed with, but not surprised by, Block’s ruling. 

“It’s a strong order. It makes sense. It’s tied to a Supreme Court decision,” she said. 

With Bostock so fresh in recent memory, and plenty of notice to HHS that the ruling would impact its rulemaking ability, she said Block’s decision rested on a solid foundation. 

“HHS wrote in there that there’s going to be a decision one way or another,” Mallory said. “They basically acknowledged that the Supreme Court decision will bear on this interpretation.”

Mallory said the ruling’s impact, while somewhat overshadowed by Bostock itself, was notable. 

“The court really recognizes that the repeal of these laws sends the message that the government doesn’t support LGBT people and their access to health care.” 

Had the rules been able to stand, she added, “it could lead to LGBTQ people not even going to their doctors, because they’re afraid … There’s all kinds of ramifications beyond that, in terms of mental health, physical health. Discrimination really takes a toll on people’s well-being.”

The Department of Health and Human Services did not immediately respond to a request for comment Monday.

The case was filed by the Human Rights Campaign alongside co-counsel BakerHostetler.

“We are pleased the Court recognized this irrational rule for what it is: discrimination, plain and simple. LGBTQ Americans deserve the health care that they need without fear of mistreatment, harassment, or humiliation,” HRC president Alphonso David said in a statement.

“This failed attempt to callously strip away non-discrimination health care protections is merely the latest in a long line of attacks against the transgender community from the Trump-Pence team,” David added. “Today’s victory is a step in the right direction, and we at the Human Rights Campaign will continue to fight the administration’s attempts to dehumanize and stigmatize the LGBTQ community. This rule should be permanently tossed out and we will fight in court to ensure that it is.”

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