Against the backdrop of the United States’ continued struggle with the COVID-19 pandemic, LGBTQ+ rights advocates across the country are contesting a new federal rule issued by the Department of Health and Human Services (HHS) that repeals discrimination protections for LGBTQ+ individuals seeking healthcare. Among those leading the challenges are Omar Gonzalez-Pagan L’10 for Lambda Legal, Michelle Banker L’10 for National Women’s Law Center (“NWLC”), and Marsha Chien L’10 for the Washington State Attorney General’s Office.
“Imagine losing access to health care or fearing discrimination in health care while at the same time being in the midst of a public health pandemic that has cost so many lives – over 170,000,” said Gonzalez-Pagan. “It is a reminder of what is at stake in this litigation.”
Affordable Care Act, 2016 Rule, and Revised Rule
The non-discrimination provision of the Patient Protection and Affordable Care Act (“ACA”) is known as Section 1557. Since the ACA’s enactment in 2010, Section 1557 has prohibited health care providers, entities, and insurers operating under the ACA from discriminating against individuals on the basis of race, color, age, disability, or sex.
In 2016, the Obama Administration finalized a regulation (“2016 Rule”) that clarified how discrimination “on the basis of sex” should be interpreted under Section 1557. According to the 2016 Rule, the prohibition on sex discrimination includes discrimination based on transgender status and gender-based stereotypes. The 2016 Rule specifically prohibits health care providers, entities, and insurers (“health care units”) from excluding from its coverage any treatments related to gender transition, calling such an exclusion “discriminatory on its face.”
The Trump Administration’s new rule, proposed in May 2019 and published in June 2020 (“Revised Rule”), repeals the 2016 Rule’s interpretation of sex discrimination and eliminates explicit protections for transgender people. It also includes broad religious exemptions, which would allow health care units to opt out of providing certain treatments, such as reproductive and gender transition care, if the health care units felt that providing such care would conflict with their religious beliefs. Further, the Revised Rule removes the 2016 Rule’s mandates that require health care facilities to post multilingual notifications alerting patients with Limited English Proficiency (“LEP”) to the fact that they have a right to free language services under the ACA.
HHS stated in the Revised Rule’s preamble that it was revising the 2016 Rule “to better comply with the mandates of Congress, address legal concerns, relieve billions of dollars in undue regulatory burdens, further substantive compliance, reduce confusion, and clarify the scope of Section 1557 in keeping with existing civil rights statutes and regulations prohibiting discrimination on the basis of race, color, national origin, sex, age, and disability.” HHS also asserted that the 2016 Rule “exceeded its authority under Section 1557, adopted erroneous and inconsistent interpretations of civil rights law, caused confusion, and imposed unjustified and unnecessary costs.”
The complaints filed by Gonzalez-Pagan, Banker, and Chien argue that the Revised Rule is contrary to law, arbitrary and capricious, and unconstitutional. Respectively, the cases are Whitman Walker Clinic v. HHS, filed in the U.S. District Court for the District of Columbia; BAGLY v. HHS, filed in the U.S. District Court for the District of Massachusetts; and Washington v. HHS, filed in the U.S. District Court for the Western District of Washington.
Defining discrimination “on the basis of sex”
In arguing that the Revised Rule is contrary to current federal law, each complaint points to the Supreme Court’s Bostock v. Clayton County, Georgia decision, which came down just days before the Revised Rule was published. In Bostock, the Supreme Court held that discrimination on the basis of sexual orientation or transgender status “necessarily entails discrimination based on sex.”
The complaints also argue that, because the 2016 Rule provided patients with a uniform way to seek relief from discrimination under Section 1557, the decision to enact a Revised Rule that fails to include uniform discrimination protections was arbitrary and capricious.
“They eliminated what we call the ‘unitary legal standard,’ which allows discrimination claims on each of the characteristics that are protected by the law to be adjudicated under the same legal standard,” Gonzalez-Pagan explained. “[HHS] want[s] them to be adjudicated under different standards, which complicates the ability of health care providers to comply with the rule, but also makes it more difficult to litigate intersectional discrimination claims, which we know are so real and affect many people.”
Providing religious exceptions
The Revised Rule’s broad exceptions permit health care units to refuse to treat or cover a patient if they believe that such treatment or coverage would be contrary to their religious beliefs. The Lambda Legal complaint argues that the exemptions are “contrary to law,” because they “endanger patients’ health in the name of advancing the religious beliefs of those who are entrusted with caring for them — a result sharply at odds with HHS’s stated mission to ‘enhance and protect the health and well-being of all Americans’ and to ‘provid[e] for effective health and human services.’”
The NWLC complaint argues that, similar to LGBTQ+ individuals, “women in this country have a long history of facing discrimination in health care, including reproductive and pregnancy-related health care. Discrimination can manifest in a multitude of ways, including healthcare providers’ dismissal of women’s pain, not prescribing needed pain medication, or insisting women’s symptoms are influenced by emotional distress.”
Removing obligations to accommodate for patients with Limited English Proficiency (LEP)
The Revised Rule also removes requirements for health care providers to notify LEP patients of language accommodations. Under the 2016 Rule, language assistance services were required to be provided free of charge for patients with LEP. Moreover, every covered health care unit was required to display “taglines” in the top 15-most common languages in their state informing LEP patients about the free language services. The Revised Rule removes the requirement for health care units to post these taglines.
Washington’s complaint, filed by Chien, argues that the Revised Rule harms LEP patients by “decreasing access to health care, severely limiting the ability of LEP individuals to communicate with the health care system and their providers, and overall compounding the inequities already experienced by this population.”
Challengers to the Revised Rule point out that patients who face intersecting challenges are threatened the most by a rule that weakens discrimination protections on multiple fronts.
“Trans latinx women … have faced discrimination on account of their immigration status, nationality, and transgender status,” explains Gonzalez-Pagan. “Ariana Lint, for example, was threatened with law enforcement when she was in the emergency room because she wasn’t understood, because English wasn’t her first language, and because she was HIV positive.”
At the time of this writing, Lambda Legal awaits the court’s decision on a petition for a preliminary injunction, requesting that the court render the Revised Rule unenforceable throughout the duration of the case’s litigation.
To Gonzalez-Pagan, the clients should remain at the front and center of conversations about this litigation.
“This is a rule that targets the most vulnerable amongst us in the midst of a public health pandemic,” Gonzalez-Pagan said. “So I want to keep in mind, for example, the TransLatin@ Coalition and its members who we represent, but who are disproportionately affected by this rule. Trans people already are disproportionately discriminated against and bearing the brunt of violence, harassment, and discrimination in this country. And being able to represent Trans Latinx people in a challenge that is intersectional by nature has been a wonderful opportunity. We count on them, as well as a multitude of health care providers like Whitman-Walker Heath, LA LGBT Center, GLMA [an association of LGBTQ health professionals], and AGLP [the Association of LGBTQ+ Psychiatrists] based in Philadelphia.”
Collaborating with Penn Law classmates
When asked about what it has been like to work on this litigation alongside Penn Law classmates from across the country, Gonzalez-Pagan laughed as he remembered 1L orientation. “They told you, ‘Look around in the room. These are the people you’ll be working with throughout the rest of your career. You will rely on them.’ And you think it’s cheesy, and you look around, and you all smile jokingly or think, ‘yeah right, this is not what’s going to happen.’ But that is exactly what has happened.”
In reference to his friends and classmates Banker and Chien, Gonzalez-Pagan said, “we’re in calls all the time. We email. We text. It’s really gratifying to see how this network that we built comes into play, and it makes it easier for us to do our work. We know each other. We’ve known each other for a long time. Being able to do this work and to rely on this network has been really gratifying and to me demonstrative of the culture and community that is fostered at the Law School.”
Connect with the Law School’s Law Development & Alumni Relations Office.