This article was written by John Riley originally published by Metro Weekly on July 16, 2020
Lawsuit alleges that rule is unlawful, and will lead to further discrimination against LGBTQ patients and marginalized population
A coalition of LGBTQ and LGBTQ-affirming health care groups has sued the Trump administration over its recently published rule that eliminates Obama-era transgender protections from the Affordable Care Act.
The lawsuit, filed by Transgender Legal Defense & Education Fund, the National Women’s Law Center, Transgender Law Center, the Center for Health Law and Policy Innovation of Harvard Law School, and the law firm Hogan Lovells on behalf of the plaintiffs, alleges that the new rule violated the Administrative Procedures Act because it is contrary to law, as well as arbitrary and capricious.
The rule itself revises Section 1557 of the Affordable Care Act to restrict the definition of discrimination “on the basis of sex,” to instances where a person is denied health care or insurance coverage that would otherwise be granted to others because of their assigned sex at birth.
Under the Obama administration, the prohibition on sex-based discrimination was interpreted as applying to transgender individuals — as well as pregnant individuals and people who fail to conform to gender stereotypes — who would otherwise have been able to obtain medically necessary care but for their gender identity.
But the Trump administration, notably the U.S. Department of Health and Human Services, has been insistent upon restricting the protections by explicitly defining sex-based discrimination as rooted in a person’s biological sex.
Notably, Roger Severino, the head of HHS’s Office for Civil Rights, has been a chief proponent of the change ever since passage of the Affordable Care Act — something he advocated for prior to joining the Trump administration, when he worked for the Heritage Foundation, a conservative Washington, D.C.-based think tank.
One of the plaintiffs in the case is Darren Lazor, a 35-year-old transgender man from Cleveland, Ohio, who experienced numerous instances of discrimination from health care providers due to his gender identity from 2012 to 2017.
In one of those instances, Lazor, a member of plaintiff organization Equality California, was forced to seek treatment from four different doctors in order to have a large ovarian cyst removed from his uterus, in part because the first three doctors refused to treat him or refused to perform a hysterectomy, which is a legitimate treatment option for the condition.
“I have experienced feeling like a doctor doesn’t care if I live or die — which is just shameful,” Lazor said in a statement. “No one should be denied life-saving health care or be discriminated against the way I have simply because of who they are. I hope that sharing my story can help others understand that transgender people are who we are, and we deserve to be treated fairly under the law.”
Other plaintiffs include: The Boston Alliance of Gay, Lesbian, Bisexual and Transgender Youth (BAGLY); the Callen-Lorde Community Health Center of New York City; Fenway Health, a Boston-based federally-qualified health center that specializes in LGBTQ-affirming care; the Campaign for Southern Equality, Equality California, and Transgender Emergency Fund.
Lawyers for the plaintiffs argue in the lawsuit that the rationale behind the new rule’s stricter definition of sex-based discrimination runs counter to the findings of the U.S. Supreme Court in a recent 6-3 decision finding that LGBTQ people are protected from discrimination in the workplace by federal civil rights law.
The lawsuit also claims the rule will embolden discrimination and further harm several classes of people, including LGBTQ patients, people seeking reproductive health care, and people with chronic illnesses, including those living with HIV, and will create confusion among health care professionals and insurance providers about the extent of law’s protections.
“The abhorrent changes by HHS are yet another illegal attempt by the current administration to further endanger the lives of transgender people, especially Black transgender women who face the greatest challenges with accessing health care,” Andy Marra, the executive director of the Transgender Legal Defense & Education Fund, said in a statement.
“Today, with our partners and plaintiffs, TLDEF is challenging these regulations to ensure that explicit health care protections for transgender people remain intact, especially during a pandemic that is placing the lives of those most pushed to the margins at severe risk. We look forward to seeing HHS in court.”
Transgender people already face disproportionate discrimination in health care settings, including mistreatment by insurers and humiliation and harassment by doctors.
Those problems are exacerbated for individuals of color and people living in rural regions, especially in the American South.
The plaintiffs claim that the rule puts people in those vulnerable communities at risk of greater harm by enabling providers to deny them insurance coverage or medically necessary treatment.
“Trans people should be able to seek medical care when we need help without being turned away or denied treatment because of who we are or where we live,” Dale Melchert, a staff attorney at the Transgender Law Center, said in a statement.
“This dangerous and intentional move by the Trump Administration contradicts federal law while putting the lives of trans people in jeopardy — especially trans people living with HIV, Black trans people and people of color, trans people with disabilities, and trans people living in rural areas and in Southern states.”