On August 17, a federal judge in New York ordered the U.S. Department of Health and Human Services (HHS) not to interfere with anti-discrimination protections for LGBTQ patients by pushing forward with rules that the Trump administration wanted to take effect today. The jurist said that the new HHS rules are likely in conflict with the U.S. Supreme Court's (SCOTUS) decision that federal law bans workplace bias based on sexual orientation and gender identity.
The judge determined that HHS ignored the implications of the SCOTUS June decision in the case of Bostock v. Clayton, which originated in Georgia. We highlighted the case in a June blog post.
In that case, the High Court ruled that Title VII of the Civil Rights Act covers discrimination based on sexual orientation and gender identity and that discrimination based on sexual orientation or gender identity is also discrimination based on sex, which is prohibited by Title VII.
In his ruling yesterday, Senior U.S. District Judge Frederic Block ruled HHS advanced a different definition of "discrimination on the basis of sex" than the high court's definition. HHS filed the new rules just three days before the SCOTUS decision and did not make changes following the High Court's ruling. Judge Block wrote: “The timing might even suggest to a cynic that the agency pushed ahead specifically to avoid having to address an adverse decision. . . But whether by design or bureaucratic inertia, the fact remains that HHS finalized the 2020 Rules without addressing the impact of the Supreme Court's decision in Bostock. This makes it likely that plaintiff[s] will succeed on their claim that the rules are arbitrary and capricious.” (Emphasis added.)
The plaintiffs are two transgender women of color from New York City.
The new HHS rules would have rolled back Obama-era regulations intended to protect LGBTQ patients against discrimination at healthcare facilities. The Obama administration interpreted the Affordable Care Act's ban on discrimination “on the basis of sex” to include discrimination “on the basis of gender identity and sex stereotyping.”
The Trump administration preferred a stricter definition of discrimination “on the basis of sex.” The administration claimed that ACA did not protect patients from biased treatment based on a medical provider's “stereotypical notions of masculinity or femininity, including expectations of how individuals represent or communicate their gender to others, such as behavior, clothing, hairstyles, activities, voice, mannerisms, or body characteristics.”
Tanya Asapansa-Johnson Walker and Cecilia Gentili sued over the regulations saying the policy left LGBTQ people vulnerable to healthcare discrimination, which they claimed would lead to “foreseeable, tangible, and tragic” consequences, including unnecessary deaths.
So, the plaintiffs asked the judge to issue a preliminary injunction against the rules on the basis that they violated the SCOTUS ruling in Bostock.
Judge Block granted the request and further wrote: “When the Supreme Court announces a major decision, it seems a sensible thing to pause and reflect on the decision's impact. Since HHS has been unwilling to take that path voluntarily, the Court now imposes it.”
While this case is still working its way through the courts, it is an important ruling for the LGBTQ community and everyone who supports that community. There is no place in our country's healthcare system for discrimination against anyone.
If you believe that you have been discriminated against or terminated because of your sexual orientation or gender identity we invite you to reach out to us at 404-487-0903. One of our experienced attorneys will be glad to talk through your situation with you and advise you about what steps you may be able to take to protect yourself.
Kathy Harrington-Sullivan contributed to this blog post.