For the second time in less than a month, a federal judge has blocked parts of the Trump administration’s transphobic rule that aimed to gut Obamacare’s nondiscrimination protections and give medical providers a green light to turn away patients on the basis of gender identity.
Judge James E. Boasberg of the US District Court for the District of Columbia stepped in on September 2 to grant Lambda Legal’s request for a preliminary injunction targeting the parts of the Department of Health and Human Services (HHS) rule that limited the definition of sex discrimination and allowed providers to use religion as a shield when denying trans patients. That case against the Trump rule is led by the Washington, DC-based Whitman-Walker Clinic, along with other health groups serving queer clients represented by Lambda Legal.
Among his findings, Boasberg noted the potential health barriers that could emerge under the rule and stressed that such restrictions could imperil the health needs of trans communities at a time when the nation is gripped by the coronavirus pandemic.
“[D]enying an injunction would impede the public interest by threatening the health of LGBTQ individuals at large, some of whom will likely develop increasingly acute conditions on account of their delaying necessary care or refraining from transparent communication with providers out of fear of discrimination,” the judge wrote. “There is clearly a robust public interest in safeguarding prompt access to health care. 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 injunction followed another preliminary injunction, issued on August 17, involving a different case but pertaining to the same rule. Judge Frederic Block of the Eastern District of New York in Brooklyn issued that injunction just one day before the scheduled implementation of the Trump rule, which sought to undercut the Obama administration’s 2016 rule stipulating that Section 1557 of the Affordable Care Act (ACA) would be interpreted in accordance with Title VII of the 1964 Civil Rights Act.
HHS under President Barack Obama administration relied on federal court rulings that found that the sex discrimination provisions of Title VII necessarily banned discrimination on the basis of gender identity, a perspective rejected by the Trump administration. In June, however, the Supreme Court, echoing the Obama interpretation, ruled that Title VII does indeed cover workplace protections on the basis of gender identity and sexual orientation. That ruling set a new precedent for interpreting the sex discrimination provisions of other federal laws — Title VII has long been the standard by which similar statutes are interpreted — and its scope is expected to broaden beyond employment as future court cases emerge.
If Democrats maintain their grip on the US House of Representatives and regain control of the Senate and the White House, lawmakers could also broaden nondiscrimination protections by passing the stalled comprehensive measure known as the Equality Act.
Judge Block, in his ruling last month, stressed that the Human Rights Campaign and its volunteer attorneys from Baker & Hostetler LLP, representing two transgender women in New York, Tanya Asapansa-Johnson Walker and Cecilia Gentili, would likely win their case on the merits of their claim that the Trump HHS rule was inconsistent with Obamacare’s sex discrimination protections — as interpreted in light of the June Supreme Court ruling — and that HHS was “arbitrary and capricious” in finalizing the rule just days ahead of that decision being announced.
The team at Lambda Legal celebrated the September 2 injunction and cited the timeliness of it in the midst of a coronavirus pandemic that has already disproportionately impacted marginalized communities nationwide.
“Health care is a human right and the Affordable Care Act sought to expand access to health care for everyone regardless of their sex, LGBTQ identity, or other characteristics,” Omar Gonzalez-Pagan, a senior attorney and health care strategist at Lambda Legal, said in a written statement. “This administration’s health care discrimination rule is just another example of its disdain for LGBTQ lives and the law. The rule is unlawful and endangers people’s lives, plain and simple. A health care policy that is rooted in animus against LGBTQ people, particularly those who are most vulnerable among us like transgender people and those with limited English proficiency, cannot stand. We are gratified by this early victory and will continue to fight this rule until the end.”
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