Whitman Walker’s 1525 building – Photo: Todd Franson.
Whitman-Walker Health, in conjunction with Lambda Legal and a host of other LGBTQ groups, has sued the Trump administration for a recently published rule in the federal register that effectively eliminates LGBTQ nondiscrimination protections contained in Section 1557 of the Affordable Care Act.
The rule, published on Friday in the Federal Register, redefines the ACA’s prohibitions on discrimination on the basis of “sex” as pertaining only to instances where a person is denied treatment or insurance coverage because of their biological sex at birth.
Under the Obama administration, the provision was interpreted more broadly, applying to cases where a person is discriminated based on several other characteristics, including their gender identity or pregnancy status.
Unless a court blocks it from going into place, the revised rule is expected to take effect on Aug. 18.
In addition to Whitman-Walker, other plaintiffs in the case being represented by Lambda Legal include: the TransLatin@ Coalition, its members and affiliated organizations, the Bradbury-Sullivan LGBT Community Center in Allentown, Pa., the Los Angeles LGBT Center, GLMA: Health Professionals Advancing LGBTQ Equality, AGLP: The Association of LGBTQ Psychiatrists, and four medical providers who work for either Whitman-Walker or the Los Angeles LGBT Center.
The lawsuit, filed on Monday in U.S. District Court for the District of Columbia, argues that the Department of Health and Human Services’ issuance of the rule violated the Administrative Procedure Act, the Fifth Amendment’s guarantee of equal protection and due process, and the free speech and establishment clauses of the U.S. Constitution. The lawsuit claims the rule is arbitrary and capricious, shows animus toward the LGBTQ community, and that the justification for it is based on a flawed analysis.
The lawsuit also argues that the revised rule creates “immediate and irreparable” harms on two fronts: first, against LGBTQ people, who will be denied care or coverage for various health services, especially transgender people seeking gender-affirming care; and second, in terms of the burden it places on the organizations that serve the LGBTQ community, as their resources will be stretched thin and costs will increase as they attempt to provide care to LGBTQ people who are turned away elsewhere.
This impact will be especially severe for people with health disparities or those with limited English proficiency, who already face barriers to obtaining care that meets their needs.
Lastly, the plaintiffs contend — using the same rationale used in the Supreme Court’s recent decision regarding LGBTQ employment — that anti-LGBTQ discrimination is, by its nature, a form of sex-based discrimination, and are asking that the revised rule be overturned and enjoined so the federal government cannot enforce it.
“While HHS’s health care discrimination rule cannot change the law, it creates chaos and confusion where there was once clarity about the right of everyone in our communities, and specifically transgender people, to receive health care free of discrimination,” Omar-Gonzalez-Pagan, a senior attorney and health care strategist for Lambda Legal, said in a statement.
“Today, Lambda Legal, a broad coalition of LGBTQ groups, and the people our clients serve say ‘enough’ to the incessant attacks from the very agency charged with protecting their health and well-being. For years, the Trump administration has utilized HHS as a weapon to target and hurt vulnerable communities who already experience alarming rates of discrimination when seeking care, even now, during a global pandemic. Their actions are wrong, callous, immoral and legally indefensible. We will fight back.”
Naseema Shafi, the CEO of Whitman-Walker Health, which specializes in LGBTQ-competent care, called the revised rule “antithetical” to the federal qualified health center’s mission and core values.
“Health care systems should be safe places for everyone to seek care; where people’s identities are affirmed, regardless of race, religion, sexual orientation, gender identity, disability, national origin, or other characteristics,” Shafi said in a statement. “The federal government should be a partner in addressing the repeated violence perpetrated against Black and brown communities, against immigrants, and against transgender people, and today’s action is about holding the administration accountable for the safety, well-being and civil rights of our communities.”
Demonstrators outside the White House protesting attempts to repeal trans protections in health care – Photo: National Center for Transgender Equality.
“The health care discrimination rule will hurt marginalized communities who already experience barriers to care, but especially those of us who are transgender, non-English speakers, immigrants, people of color and people living with disabilities, and will have an even more serious impact on those of us who hold intersectional identities,” Bamby Salcedo, the president and CEO of the TransLatin@ Coalition, said in a statement. “The TransLatin@ Coalition and its affiliated organizations such as Arianna’s Center in Florida and Puerto Rico and the Fundación Latinoamericana de Acción Social (FLAS) in Texas exist because of the already present challenges in our communities and because everyone deserves easy access to care that is respectful of who we are, compassionate and competent. Our lives depend on it and we’re going to fight for it.”
“The Trump Administration’s final rule would have you think that decades of healthcare bias against LGBTQ people never happened. But not so,” Adrian Shanker, the executive director of the Bradbury-Sullivan LGBT Community Center, added in a statement. “Health care non-discrimination protections are essential to ensure that LGBTQ people can receive the health care we need to survive…. Healthcare is a human right and LGBTQ people deserve non-discriminatory health care.”
Other organizations also previously promised to sue once the revised rule was published in the Federal Register. The Human Rights Campaign has threatened legal action, with President Alphonso David promising to sue the Trump administration “for exceeding their legal authority and attempting to remove basic health care protections from vulnerable communities.”
The American Civil Liberties Union also weighed in on a potential lawsuit.
“The Supreme Court has said that discrimination against people for being LGBTQ is discrimination because of sex. The Affordable Care Act also prohibits discrimination because of sex, and Trump cannot rewrite the statute or overrule the Supreme Court,” Gabriel Arkles, a senior staff attorney with the ACLU, said in a statement. “We’re confident that Trump’s attempt to undermine protections for LGBTQ people in healthcare will fail.”
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