Gender Identity Bias Claim Can Go Forward Under Obamacare

Deciding an important issue under the federal Affordable Care Act for the first time, Minnesota US District Judge Susan Richard Nelson denied a motion by a Minneapolis area hospital and its emergency physicians to dismiss a lawsuit brought by a transgender man claiming the defendants violated the ACA because “he received worse care because of his status as a transgender man.”

The March 16 ruling is an important first step in recognizing the right of individuals to sue for discrimination under the ACA.

Jakob Tiarnan Rumble was 18 when he claims to have encountered discriminatory treatment because of his gender identity at Fairview Southdale Hospital’s emergency room in June 2013. Rumble was suffering from painful inflammation of his female genitals, and his doctor prescribed antibiotics but they didn’t take care of the pain, making it difficult for him to walk. His mother, a health care professional, determined he needed emergency care and took him to Fairview’s emergency room.

US judge finds Health and Human Services administrative finding allows trans man to pursue suit against hospital

There, he immediately encountered difficulties due to the difference between his male appearance and his female-identified driver’s license. Though he told hospital personnel he identifies as male, he was given a female designation in the hospital’s records and on the wristband issued to him.

In the emergency room, Rumble encountered a physician whose alleged treatment of him is painful to read. According to the court, Dr. Randall Steinman “allegedly asked Rumble in a ‘hostile and aggressive manner,’ ‘[w]ho are you having sex with?’ When Rumble asked Dr. Steinman ‘what he meant by that [question],’ Dr. Steinman asked, ‘[m]en, women, or both?’ Rumble alleges that ‘Dr. Steinman seemed angry, and held his face a few inches from [Rumble’s] face when he asked questions.’”

Rumble also contends that after telling Steinman that he was in a great deal of pain and asking that he “please be gentle,” the doctor “took a strip of gauze and [allegedly] wiped [Rumble’s] labia in a very rough manner,” the court wrote, quoting from the complaint.

According to Rumble’s complaint, both doctors and nurses at Fairview treated him as if he were an oddity beyond the scope of their medical knowledge.

Rumble also pointed to problems with billing for the services he received. He was denied insurance coverage because “the diagnosis is inconsistent with the patient’s gender,” even though Rumble alleges the ultimate diagnoses of his problems concerned conditions “that can, and do, affect people of any sex or gender.”

Rumble claims to have been so traumatized by his experience at Fairview that he can’t return there for treatment, even though it is the hospital most conveniently located to his home.

An investigation of his complaints by the Office of Civil Rights of the Department of Health and Human Services (HHS) is ongoing.

What makes the court’s ruling significant is that the ACA incorporates non-discrimination requirements of several federal discrimination laws, none of which expressly mentions gender identity as a prohibited ground of discrimination. The task before the court was to decide whether developments in administrative interpretation and court decisions extending the sex discrimination prohibitions to include gender identity discrimination should be recognized under the ACA.

The court also had to make the preliminary determination that the reference to nondiscrimination laws give patients a right to sue directly in federal court under the ACA, in addition to any administrative complaint procedures that might be available.

Judge Nelson resolved both questions in Rumble’s favor, at least in deciding his complaint should not be dismissed.

The judge took note of an opinion letter issued by Leon Rodriguez, director of the HHS Office of Civil Rights, stating that the ACA “extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity” and prohibits “discrimination regardless of the actual or perceived sexual orientation or gender identity of the individuals involved.” Rodriguez’s letter is not “controlling” as precedent, but the court can defer to it as an interpretation by the agency charged with the ACA’s enforcement.

Rumble’s description of the problems he encountered at Fairview, Nelson concluded, were sufficient to raise the issue of discriminatory treatment on the basis of sex and gender identity.

On the question of a right to sue, Nelson wrote, “Congress likely intended to create a new right and remedy in a new context without altering existing laws.”

The court could also consider Rumble’s allegation that his treatment was a violation of the Minnesota Human Rights Act, among the first in the nation to provide protection against gender identity discrimination.

Nelson’s lengthy and detailed analysis of the legal issues might encourage the hospital and its physicians to pursue a settlement rather than an appeal. In that case, where no final decision on the merits results, no formal judicial precedent would be established. If the defendants hang tough and force Rumble to litigate on the merits, his case could provide the appellate vehicle to pin down the extent of protection against discrimination the ACA affords health care consumers.

Attorneys Christy L. Hall, Jill R. Gaulding, and Lisa C. Stratton of St. Paul and Katherine S. Barrett Wiik of Minneapolis represent Rumble.

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