States Sue Over White House Rollback of Transgender Health Care Protections

The National Center for Transgender Equality, NCTE, and the Human Rights Campaign gather on Pennsylvania Avenue in front of the White House on Oct. 22, 2018, for a #WontBeErased rally. (AP Photo/Carolyn Kaster)

(CN) — Challenging a rule that eliminates antidiscrimination protections in health care for transgender people and women seeking abortions, 22 states and the District of Columbia sued the Trump administration in federal court Monday.

The lawsuit, filed in New York and led by attorneys general of New York, California and Massachusetts, seeks to block a rule that imposes “unjustifiable barriers to health care” for vulnerable populations in the midst of the global Covid-19 pandemic.

“It’s never acceptable to deny health care services to people who need it, but it’s especially unacceptable to do this during a pandemic,” New York Attorney General Letitia James said during a press call Monday.

The rule finalized by the Department of Health and Human Services in June reverses a 2016 regulation issued as part of the Patient Protection and Affordable Care Act that included gender identity in protections against discrimination on the basis of sex.

The Obama-era regulation defined gender identity to include “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.” The Trump administration announced last month it will interpret the word “sex” as “male or female and as determined by biology.”

The 2016 regulation was issued as part of section 1557 of the Affordable Care Act, commonly called Obamacare, which applied a host of existing civil rights laws to health care facilities that receive federal funding. In addition to prohibiting discrimination against transgender patients, the regulation also barred discrimination based on sex stereotyping and abortion.

A federal judge in Texas blocked the Obama-era regulation in December 2016, finding it “substantially burdened” religious rights, and in October 2019 he struck the rule down as violating federal law.

Despite that legal victory for opponents of transgender health care protections, states suing the Trump administration say the legal landscape has changed since the Supreme Court ruled on June 15 that civil rights laws protect gay and transgender people from discrimination.

“The 2020 rule conflicts with the Supreme Court’s holding in Bostock v. Clayton County that the plain meaning of sex discrimination encompasses discrimination based on an individual’s sexual orientation or gender identity,” the plaintiffs argue in their 98-page complaint.

The states point to a 2017 report by the Robert Wood Johnson Foundation and Harvard School of Public Health, which found one in six LGBTQ people avoid seeking medical care due to fear of discrimination.

“Instead of expanding access to care, this White House is again putting up barriers and exacerbating the fear and anxiety that already exists for these communities,” Massachusetts Attorney General Maura Healey said during a press call Monday.

In addition to rolling back the 2016 protections, the new regulation also makes clear that other laws providing protections for sincerely held religious beliefs apply to the health care antidiscrimination rules.

The plaintiffs claim this “broad religious exemption” violates Section 1557 of the Affordable Care Act and “attempts to give religiously-affiliated providers and insurers license to deny care and coverage for discriminatory reasons.”

The new rule also eliminates provisions requiring health care providers to notify people in writing of their nondiscrimination policies in 15 languages. The prior rule required notifying patients and insurance customers of the availability of language translation services for non-English speakers and auxiliary aids for people with hearing and visual disabilities.

The plaintiffs say these rollbacks will affect more than 25 million people in the United States with limited English-speaking skills and countless individuals with disabilities.

“By removing and weakening language access requirements the rule will diminish public knowledge of the means and methods for accessing health care and health insurance,” the complaint states.

The states claim the new rule was enacted in an arbitrary and capricious manner in violation of the Administrative Procedure Act and that it denies equal protection under the law as required by the Fifth Amendment. It further claims the Department of Health and Human Services lacks authority under the law to enact such changes.

But Roger Severino, director of the Health and Human Services’ civil rights office, said his office has been aggressive in “enforcing civil rights protections in health care, especially during the pandemic. He noted the gender identity and abortion provisions of the law had been struck down by a judge and that it was “the Obama, not Trump, administration that decided to exclude sexual orientation as a protected category in this health-care rule a mere four years ago.”

Other plaintiffs in the case include Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Wisconsin.

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