HEALTH
Trump Blocked in Stripping Trans Health Protections
Relying on June Title VII decision, Brooklyn US district court one step ahead of bigots
BY ARTHUR S. LEONARD
A US district court judge
ruled on August 17 that
a new Trump administration
rule rescinding
an Obama era rule prohibiting
gender identity discrimination in
healthcare will not go into effect
on August 18, its scheduled date,
granting a preliminary injunction
against its enforcement. The judge
in the case, Frederic Block, sits on
the Eastern District of New York
federal bench in Brooklyn.
After the Affordable Care Act
(ACA) became law in 2010, the Department
of Health and Human
Services (HHS) worked to provide
an offi cial interpretation of the
nondiscrimination requirements
contained in the statute’s Section
1557. That section incorporates
by reference a provision of Title
IX of the Education Amendments
of 1972, which forbids sex discrimination
in educational institutions
receiving federal funding.
Both HHS and federal courts, in
interpreting Title IX, in turn have
looked to decisions interpreting
the sex discrimination provision
in Title VII of the 1964 Civil Rights
Act, which addresses employment
discrimination.
By the time HHS had fi nished
writing its rule in 2016, both the
Equal Employment Opportunity
Commission and several federal
appeals courts had interpreted
Title VII to ban discrimination
because of an individual’s gender
identity. HHS followed these precedents
and included a prohibition
on gender identity discrimination
in its ACA rule.
Several states and a religious
health care institution, Franciscan
Alliance, then challenged the rule
before a federal district judge in
Fort Worth, Texas, who was notoriously
receptive to issuing nationwide
injunctions against Obama
administration policies. True to
form, that court ruled in late 2016
that the inclusion of gender identity
was contrary to the “original
meaning” of the term “because of
sex” when Congress adopted Title
Cecilia Gentili was was one of two transgender clients represented by the Human Rights Campaign and
pro bono lawyers from Baker & Hostetler LLP who prevailed in blocking enforcement of a new
anti-trans rule under Obamacare hatched by the Trump administration. .
IX in 1972.
When the Trump administration
came to power, it began work
on the rule challenged in the case
decided on August 17 in response
to the Forth Worth federal court’s
decision. Had Hillary Clinton been
elected instead, her administration
would likely have appealed the Fort
Worth ruling to the Fifth Circuit
Court of Appeals.
Judge Block in his ruling this
week emphasized this history in
explaining his fi nding that the Human
Rights Campaign (HRC) and
its volunteer attorneys from Baker
& Hostetler LLP, were likely to succeed
on the merits of their claim
that the Trump rule was inconsistent
with the ACA and that HHS
was “arbitrary and capricious” in
fi nalizing it just days before the
historic June 15 Supreme Court
ruling in Bostock v. Clayton County
that found that discrimination
against a person because of their
transgender status was “necessarily
discrimination because of sex.”
The Trump administration was
so confi dent that the court would
rule the other way that it decided
to fi nalize its new rule ahead of the
high court decision, though in its
preamble HHS did acknowledge
that a decision by the Supreme
Court in the Title VII case could
PHOTO DONNA ACETO
affect the interpretation of Section
1557. Without publicly reacting to
the Bostock decision or revising the
new rule to acknowledge that the
Supreme Court had rejected the
Trump administration’s interpretation
of “discrimination because
of sex,” HHS went ahead and published
its new rule fi ve days later.
Over the following weeks, challenges
to the new rule were fi led in
four different federal courts. HRC
fi led suit on behalf of two transgender
women in New York, Tanya
Asapansa-Johnson Walker and
Cecilia Gentili, who had encountered
discrimination from healthcare
institutions covered by the
ACA. Block found that their experiences
gave them formal standing
to challenge the new rule, reaching
his decision the day before the
Trump administration was set to
implement it.
Block found that the well established
practice of following Title VII
interpretations in sex discrimination
cases was likely to be followed
under the ACA, just as it was under
Title IX, and so the plaintiffs were
likely to succeed in their claim
that the new rule was inconsistent
with the ACA. He noted that just
two weeks earlier, the 11th Circuit
Court of Appeals had followed the
Bostock decision in fi nding that a
Florida school district violated Title
IX by denying appropriate restroom
access to a transgender student.
Block also found the failure of
the new rule, published after the
Bostock decision, to mention that
ruling or offer any reasoned explanation
why it should not be
followed, was likely to be found
“arbitrary and capricious,” so its
adoption probably violated federal
administrative procedures defi ned
in law.
Even though the Obama nondiscrimination
rule has not been
enforced by HHS since the December
2016 injunction by the federal
court in Fort Worth, numerous
lawsuits under Section 1557 have
successfully challenged exclusion
of transgender healthcare protections
under the ACA.
Block’s injunction against enforcing
the new Trump rule gives
the green light to HHS to resume
enforcing Section 1557 in gender
identity discrimination cases consistent
with the Bostock ruling.
While there are probably plenty of
career offi cials in the HHS Offi ce of
Civil Rights who would like to do
so, any signifi cant effort in that
direction seems unlikely so long
as Trump holds on to the reins of
power.
For now, the main impact of
Judge Block’s order will be to clear
a potential obstacle for transgender
litigants under Section 1557,
as the opinion persuasively explains
how the reasoning in the
Bostock ruling compels protecting
transgender healthcare patients
under the ACA.
The burden on HHS — should
it want to continue defending the
new Trump rule — is to provide a
reasoned explanation for why the
Bostock interpretation of “discrimination
because of sex” should not
be followed under Section 1557.
Of course, the HHS could also
simply rewrite the rule with a simple
statement that Section 1557’s
ban on discrimination because
of sex includes claims of sexual
orientation or gender identity discrimination
consistent with the
Supreme Court’s Bostock decision.
August 27 - September 9,20 2020 | GayCityNews.com
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