Biden’s LGBT health protection plan confused by Trump-appointed judge

The future of the Biden administration’s efforts to ban LGBTQ discrimination in health care hangs in the balance after a Trump-appointed judge ruled that the Affordable Care Act narrowly defines sex.

The decision weakens protections for LGBTQ people who believe they were discriminated against because of their gender identity or sexual orientation, while the Biden administration is still working on a final decision. rule that would ensure those protections remain.

The issue has been debated since the Obama administration and the ruling adds to the uncertainty.

“There is no question that this has created a mess for the agency,” Karen Loewy, senior counsel and director of constitutional law for civil rights group Lambda Legal, said of U.S. District Judge Matthew J. Kacsmaryk’s opinion.

Kacsmaryk, a Texas judge who has criticized the constitutional right to same-sex marriage, recently held that discrimination based on gender identity and sexual orientation is not prohibited by ACA Section 1557. The ruling rejected a notice from the Biden administration that it would enforce protections for LGBT Americans.

The ruling is “basically intended to protect all health care entities across the country from having to comply with a federal statute to which they are subject,” Loewy said. “The statute itself makes it clear that sex discrimination in federally funded health programs and activities is prohibited, and the Supreme Court has made it clear that sex discrimination includes discrimination against transgender people.”

The district court decision is one of several recent blows to LGBT rights. The United States Court of Appeals for the Eighth Circuit on Friday upheld a permanent injunction of lower court prevent the government from forcing Catholic entities to provide or pay for transgender-related care. The process will continue in the first instance.

The Department of Health and Human Services received more than 70,000 comments on its proposed rule to restore protections for LGBTQ people (RIN 0945-AA17), which it expected Finalize at the end of 2022.

HHS did not respond to a request for comment.

definition of sex

ACA section 1557 prohibits discrimination in health care programs on the basis of race, color, national origin, age, disability, or sex. The Biden administration moved to enforce broader protections with its notice in May 2021Following the decision of the US Supreme Court. Bostock vs. Clayton that gender discrimination in employment counts as sex discrimination under Title VII of the Civil Rights Act of 1964.

The administration released the proposed rule in July and accepted comments through October.

The Biden administration’s efforts follow a series of Republican-led attempts to prevent children from receiving gender affirming care. The Trump administration formerly unmounted an Obama-era safeguard in 2020 and allowed health care providers, hospitals and insurers to withhold care or coverage for LGBTQ people.

Kacsmaryk’s November ruling stems from a challenge filed by two Texas doctors over concerns they would lose federal money for denying transgender patients gender-affirming care. The case is one of several lawsuits trying to clearly define the limits of protections against sex discrimination after Bostock.

If the Biden administration appeals the case, it will go to the Fifth Circuit, which is dominated by judges appointed by Republican presidents. A victory for the plaintiffs would establish a circuit split, making the case a likely candidate for Supreme Court consideration, health care experts say.

Regulatory challenges

The proposed rule is intended to “reflect recent developments in civil rights jurisprudence” and address discrimination issues that contribute to negative health interactions and outcomes. according to to HHS.

Texas doctors sued over a notice HHS sent out before rulemaking began, so the lawsuit can’t stop the department from continuing to develop the new rule, Loewy said.

But in the final rule, “the government will have to acknowledge ongoing litigation, as it did in the proposed rule,” said Zachary Baron, associate director for Health Policy and Law Enforcement at the O’Neill Institute.

While the class of plaintiffs covered by the judge’s decision is large, encompassing more than a million health care providers subject to Section 1557, it does not apply to other entities such as insurers, Baron said. “I anticipate that the administration will try to do everything possible to ensure that some of these protections are in place in other circumstances” in the final rule, Baron said.

See also  Nizamabad: No Nutrition Lunch Meal

In the meantime, other jurisdictions could challenge the ruling, said Christy Mallory, legal director of UCLA Law School’s LGBTQ think tank, the Williams Institute. HHS is also likely to appeal.

The ruling “does not mean that discrimination against LGBTQ people in health care is now legal,” Mallory said. But it is clear that HHS will not be able to accept complaints from patients that their providers discriminated against them because of their gender identity or sexual orientation, she said.

People who believe they were discriminated against on the basis of sexual orientation or gender identity may still file lawsuits under Section 1557. Some state laws also prohibit this type of discrimination.

“We may see more of these decisions coming out of federal statutes that prohibit discrimination on the basis of sex,” of which there are hundreds, Mallory said.

Roger Severino, director of the HHS Office for Civil Rights under the Trump administration, said a separate appeals court ruling already prevents HHS from interpreting the ACA to explicitly protect against discrimination based on gender identity and sexual orientation.

The Fifth Circuit ruled in august in Franciscan Alliance Inc. v. Burwell that HHS cannot force health professionals to provide services that conflict with their religious beliefs, such as gender-affirming surgeries or abortions.

But that ruling was about the Obama administration’s version of the rule implementing Section 1557, “which is not the operative rule at this time,” Loewy said.

Reasoning of the judge

Kacsmaryk said that the Supreme Court ruling in Bostock does not apply to Section 1557.

Bostock decided only what Bostock decided,” Kacsmaryk wrote in his opinion.

See also  Plenty of room between top 2 Republican GA hopefuls | Health & Fitness

More than 70 LGBTQ groups, led by Lambda Legal, wrote to Congress in 2019 opposing Kacsmaryk’s judicial nomination due to his “anti-LGBTQ” beliefs.

Some lawyers agreed that Bostock‘s scope is narrow.

The Supreme Court was clear that its ruling on sex discrimination “is limited to the employment context, hiring and firing, and transgender status based on a biological binary,” Severino said.

“When Congress outlawed sex discrimination in health care, it was referring to biological sex, not gender identity,” Severino said. “In fact, if they had included gender identity, the Affordable Care Act probably would not have passed.”

The ACA makes explicit distinctions “between the two biological sexes” to ensure that doctors can provide appropriate biologically-based medical care, said Matt Bowman, senior counsel at Alliance Defending Freedom. Bowman served as deputy general counsel for HHS under the Trump administration.

Other health attorneys said Kacsmaryk underestimated the importance of Bostock. The case “was seen as a game changer in terms of non-discrimination regarding sexual orientation or gender identity,” Baron said.

Mallory said there is “ample case law” before and after Bostock which interprets Section 1557 to prohibit discrimination on the basis of sexual orientation and gender identity.

The Fourth Circuit ruled in August 2020 that transgender discrimination is sex discrimination in Grimm v. Gloucester County School Board, a case about the use of the school bathroom. The Eleventh Circuit agreed in the same month to Adams v. St. Johns County School BoardAnother case about the use of the bathroom.

Whether this case will be a vehicle requiring the Supreme Court to rule again on the scope of gender identity is hard to say. HHS “skimmed the rulemaking process” by issuing a compliance notice before rulemaking, so “this is a bit of an easier case,” Severino said.

Others say that the Bostock the decision is enough. “The Supreme Court has made it clear that federal protections against sex discrimination include protections for LGBTQ people,” Loewy said.