Dive Brief:
- The Biden administration cannot enforce new HHS anti-discrimination rules for transgender patients, a Mississippi federal judge ruled last week.
- The nationwide block came two days before the policy was set to go into effect on July 5. The rules sought to restore Obama-era protections, banning providers and insurers that received federal funding from discriminating against patients based on their gender identity or sexual orientation.
- Courts have previously struck down or limited healthcare protections for transgender patients, according to Rob Bradner, partner at law firm Holland & Knight. However, the recent U.S. Supreme Court decision to overturn decades old Chevron doctrine could make it easier for conservative courts to justify such decisions by lowering the bar for invalidating federal agency guidance. The decision offers “[judges] more cover to do something they wanted to do anyway,” Bradner said.
Dive Insight:
Transgender healthcare access has been the center of litigation for the past three presidencies, as the Obama, Trump and Biden administrations issued interpretations of how civil rights law might apply to LGBTQ+ healthcare, only to be met with lawsuits from those with opposing ideologies.
In April, the Biden administration sought to justify its new rules under Section 1557 of the Affordable Care Act, which prohibits treatment and coverage discrimination on the basis of race, ethnicity, age, disability or sex — a legal theory favored by the Obama administration.
The administration argued that post-Bostock v. Clayton County, Georgia — a 2020 Supreme Court ruling that found employment discrimination based on sexual orientation or gender identity was unlawful under Title VII of the Civil Rights Act of 1964 — “sex” extends to include gender identity in other federal anti-discrimination matters.
However, a group of Republican state attorneys general disputed that framework, filing suit against the HHS in May to argue the federal agency had overstepped by issuing the rules.
The plaintiffs said federal courts had previously rejected President Barack Obama’s efforts to extend Section 1557 to gender identity, and further argued the Bostock judges explicitly declined to weigh in on how sex might be defined in other areas of anti-discrimination law, including healthcare.
U.S. District Judge Louis Guirola, a President George W. Bush appointee, agreed, ruling the HHS had “likely exceeded its statutory authority” by applying Bostock to its new rules, while also citing the Supreme Court’s recent decision to overturn the Chevron doctrine.
“Specifically, the Bostock holding did not ‘sweep beyond Title VII to other federal or state laws that prohibit sex discrimination,’” the judge wrote.
Guirola barred the rules from going into effect as the lawsuit proceeds.
“And to the extent that Congress and the Executive Branch may disagree with how the courts have performed [their] job in a particular case, they are of course always free to act by revising the statute,” Guirola added.
Amanda Hill, owner and founder of Hill Law Group, advised that providers join lobbying efforts for the policies they find most critical, so they are “not relying on others to interpret statutes in their favor, but in fact start to change the statutes to begin with.”
However, Bradner is not optimistic that Congress — which has recently been one of the least productive in history — can easily tackle the issue of transgender protections.
“The problem with Congress is that they have not jealously guarded their authority over the past several decades,” Bradner said, noting that sharp divides on party lines and extreme deference to the president has weakened the body. “You've seen them do less specific legislating on difficult subjects [in recent years]. I would give you as an example: the No Surprises Act.”
While the lawsuit makes its way through the courts, the ban will hold nationwide, allowing states to enact a slew of legislation limiting transgender access to healthcare. Already, at least 25 states have laws limiting gender affirming care for minors, for example, according to a tracker from the Human Rights Campaign.
Absent national care access protections, Bradner said America’s health system is at risk of “moving back” toward a situation where healthcare quality can vary not based on the health system patients frequent, but the state they live in.
“A large health system is going to have to adjust to that — as are our medical colleges,” Bradner said. “You're seeing some of that already, where people are choosing trying to get into residency programs in certain states.”
The conservative majority Supreme Court may offer some national guidance soon. The high court will hear a case later this year challenging Tennessee’s ban on gender-affirming care for minors.
