- Campaigners herald ‘a crucial early victory’ in battle to stop Trump erasing discrimination protections.
A judge has stopped the Trump administration from using its new interpretation of the Affordable Care Act to erase protections for LGBT+ people.
The US Department of Health and Human Services (HHS) announced the roll back to protections for LGBTQ+ patients under the Affordable Care Act in June.
Barack Obama encouraged a broad definition on the rule against sex discrimination in the Affordable Care Act.
Since his presidency, it included banning discrimination ‘on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping, or gender identity’.
As a result, it protected transgender Americans from discrimination. Moreover, it also banned discrimination against lesbian, gay and bisexual people, if it was rooted in gender stereotypes.
However, President Donald Trump’s new rule scraps those protections. Instead, it interprets sex discrimination as only being about binary, biological sex.
But yesterday (17 August) a judge blocked that interpretation – for now. It came just hours before the rule was due to come into force today (18 August).
Judge Frederic Block of the US District Court for the Eastern District of New York ruled Trump’s definition is at odds with June’s Supreme Court decision on employment discrimination.
He therefore put an injunction stopping Trump’s administration from using their interpretation for now.
The injunction will remain in place while courts hear lawsuits on the matter.
‘Arbitrary and capricious’
In an historic case in June, the Supreme Court ruled employers could not fire LGBT+ people because they are gay or trans.
In the verdict, Justice Gorsuch explained why LGBT+ people are covered by the ‘sex discrimination’ protection:
‘We agree that homosexuality and transgender status are distinct concepts from sex. But as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.’
The case was about Title VII of the Civil Rights Act of 1964. While three cases were involved, lawyers refer to it as the ‘Bostock’ decision.
Indeed, in this case Judge Block wrote:
‘The court concludes that the proposed rules are, indeed, contrary to Bostock and, in addition, that HHS did act arbitrarily and capriciously in enacting them.
‘Therefore, it grants plaintiffs’ application for a stay and preliminary injunction to preclude the rules from becoming operative.’
‘LGBT+ Americans deserve health care without humiliation’
Judge Block’s decision came in a lawsuit filed by two trans women Tanya Asapansa-Johnson Walker and Cecilia Gentili.
Moreover the judge concluded that the two women have legal standing to sue and are likely to succeed on the merits of the case.
The Human Rights Campaign and the law firm of Baker and Hostetler are representing them.
Welcoming the preliminary injunction, HRC President Alphonso David said:
‘This is a crucial early victory for our plaintiffs, Tanya and Cecilia, and for the entire LGBTQ community, particularly those who are multiply marginalized and suffering disproportionately from the impacts of the twin pandemics of COVID-19 and racialized violence.
‘We are pleased the court recognized this irrational rule for what it is: discrimination, plain and simple. LGBTQ Americans deserve the health care that they need without fear of mistreatment, harassment, or humiliation.
‘This failed attempt to callously strip away non-discrimination health care protections is merely the latest in a long line of attacks against the transgender community from the Trump-Pence team.
‘Today’s victory is a step in the right direction. We at the Human Rights Campaign will continue to fight the administration’s attempts to dehumanize and stigmatize the LGBTQ community.
‘This rule should be permanently tossed out and we will fight in court to ensure that it is.’
Second case is also pending
Meanwhile, another case is also pending. Lambda Legal and the law firm of Steptoe and Johnson are representing several organizations who are also suing.
They include the [email protected] Coalition and the Whitman-Walker Clinic which serves LGBT+ people in the Washington DC area.
This went to a hearing on 3 August in the US District Court for the District of Columbia. The plaintiffs are now waiting for a decision.
This case goes beyond just challenging the Department of Health and Human Services’s new interpretation of sex discrimination.
It also disputes its new policy that makes it harder for people who speak little English to get health care. And it challenges a rule to allow religious health providers to deny care on the basis of their faith.
Lambda Legal’s senior attorney and health care strategist Omar Gonzalez-Pagan congratulated the HRC team on their victory:
‘In the midst of a global pandemic, the Trump administration has sought to invite discrimination in health care against LGBTQ people and other vulnerable populations.
‘Today, a federal court has rejected their efforts. [It has] stopped the health care discrimination rule’s rollback of protections for LGBTQ people from going into effect.
‘We look forward to a decision in our case challenging the health care discrimination rule. The safety and lives of LGBTQ people, but especially transgender people, hang in the balance.’