WASHINGTON – The U.S. Department of Health and Human Services announced Monday morning that the Biden-Harris Administration will interpret and enforce Section 1557 of the Affordable Care Act (ACA) and Title IX’s prohibitions on discrimination based on sex to include discrimination on the basis of sexual orientation and gender identity.
The announcement came minutes before a scheduled hearing before the U.S. District Court for the District of Massachusetts in BAGLY v. HHS, Equality California’s lawsuit challenging the Trump-Pence Administration’s “Rollback Rule.”
The Trump-era policy undermines the ACA’s nondiscrimination protections on the basis of sex — including pregnancy, gender identity and sex stereotyping — as well as protections for patients with limited-English proficiency and those living with chronic illnesses, including HIV. Because the issues in BAGLY v. HHS are broader than what the Administration announced today, the Court scheduled a hearing on the government’s motion to dismiss for June 3rd at 2:30 PM EST.
In reaction to the HHS announcement, House Speaker Nancy Pelosi issued a statement Monday:
“Today, the Biden Administration has taken essential and potentially life-saving action to affirm that all people in America have the right to quality, affordable health care – no matter who they are or whom they love. During this time of pandemic and always, it is vital that the most vulnerable have access to care, including LGBTQ Americans, who have long suffered injustice and discrimination that has left them dangerously exposed to health risks.
“The Trump Administration’s decision to greenlight anti-LGBTQ discrimination in health care in the middle of a pandemic was an act of senseless and staggering cruelty, made in blatant defiance of our values and a Supreme Court ruling made just a month prior.
“Congressional Democrats together with the Biden Administration are proud to uphold the equal right of every American to access the care that they need to pursue a life of dignity and health. We must now build on this progress and enact the House-passed Equality Act to fully ban anti-LGBTQ discrimination in our nation.”
In addition to Equality California, co-plaintiffs in BAGLY v. HHS include Darren Lazor, The Boston Alliance of Gay, Lesbian, Bisexual and Transgender Youth (BAGLY), Callen-Lorde Community Health Center, Campaign for Southern Equality, Equality California, Fenway Health, and Transgender Emergency Fund.
Lazor is a transgender man near Cleveland, Ohio, who experienced numerous counts of discrimination from healthcare providers on the basis of his gender identity from 2012 to 2017. He is a member of Equality California. Plaintiffs are represented by National Women’s Law Center (NWLC), the Transgender Law Center (TLC), the Transgender Legal Defense & Education Fund (TLDEF), the Center for Health Law and Policy Innovation (CHLPI) of Harvard Law School and law firm Hogan Lovells.
The lawsuit asserts that the new rule violates the Administrative Procedures Act by being contrary to law, arbitrary and capricious and a violation of the Equal Protection Clause of the 14th Amendment. Notably, it was published on June 19, just days after the June 15, 2020 U.S. Supreme Court ruling in Bostock v. Clayton County, which found that it is unlawful sex discrimination to fire employees based on sexual orientation or gender identity.
The lawsuit also asserts that the new rule will embolden discrimination and harm LGBTQ+ patients and people seeking reproductive health care, further stigmatize abortion and other pregnancy-related care, harm patients with limited-English proficiency, especially immigrants, and harm people with chronic illnesses, including those living with HIV. The rule will also create confusion about the scope of protections against discrimination under federal law.
Trans people, like plaintiff Darren Lazor, already face disproportionate discrimination in health care settings, including mistreatment by insurers and humiliation and harassment by doctors – problems that are exacerbated for trans people of color and trans people living in rural regions and the U.S. South. In seeking to deny trans people access to the healthcare they need, the Trump Administration had placed trans people, and especially Black trans women, in danger through deliberately harmful governmental action.
“We are thrilled by the news that the Biden-Harris Administration will take initial steps to reverse President Trump’s dangerous, discriminatory Rollback Rule, which undermined healthcare nondiscrimination protections critical to the LGBTQ+ community, and trans people in particular,” said Equality California Executive Director Rick Chavez Zbur.
“As the world recovers from a global pandemic, it’s more important than ever that every American have access to quality, affordable healthcare without fear of harassment and discrimination. We remain hopeful that under Secretary Becerra and Assistant Secretary Levine’s leadership, HHS will continue to take further steps to rescind the Trump-era regulation and address the harms that it has caused,” he added.
