White House reverses Trump ban on LGBT health care protections

(Bloomberg Law) –The federal government will begin enforcing protections for LGBT Americans in health care again, reversing a ban put in place by the Trump administration, the Health and Human Services Department said Monday.

The decision to do so was made in light of the Supreme Court’s finding in Bostock v. Clayton County, which held that LGBT people are protected from discrimination under Title VII of the Civil Rights Act of 1964.

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“The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation,” Health and Human Services Secretary Xavier Becerra said in a statement.

“Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. It is the position of the Department of Health and Human Services that everyone—including LGBTQ people—should be able to access health care, free from discrimination or interference, period,” he said.

Section 1557 of the Affordable Care Act prohibits discrimination on the basis of race, color, national origin, sex, age, or disability by entities that primarily provide health care and receive federal funding. This notice says that the Biden administration will enforce it as the law was initially intended.

This notice doesn’t address all aspects of the Trump-era rule, including which entities are covered under the rule, protections for those with limited English proficiency, and others, said Omar Gonzalez-Pagan, an attorney with Lambda Legal, an LGBT legal and advocacy organization.

The Justice Department told a court Monday morning that the Biden administration intends to issue a proposed rule around Section 1557, but it didn’t provide a timeline for doing so, Gonzalez-Pagan said.

The Office for Civil Rights of the HHS is reviewing the 1557 regulations and “we do anticipate engaging in rulemaking under 1557,” Robinsue Frohboese, the office’s acting director, said in an interview.

“It’s important to emphasize everybody needs access to health care,” especially during Covid-19, HHS Assistant Secretary for Health Rachel Levine said in an interview. “But people also have broken bones, and they have heart disease, and they need checkups, and no one should be discriminated against when seeking medical services.”

LGBT Americans have been “so challenged by the previous interpretation from the previous administration, and this is a breath of fresh air,” Levine, the highest-ranking openly transgender person in the Biden administration, said.

“This decision by the Biden administration needlessly and dangerously politicizes medicine and threatens the conscience rights of medical providers,” said Emilie Kao, director of the Heritage Foundation’s DeVos Center for Religion and Civil Society.

“The Biden administration’s actions are unlawful overreach, not health-care protections,” Kao said.

Obamacare’s anti-discrimination protections are based on Title IX, which bans discrimination in education and programs that receive federal funding, but courts typically look to Title VII when interpreting Title IX.

“It’s very logical and clear that the interpretation the Supreme Court used in Bostock is going to apply to every single federal civil rights statute that bars sex discrimination,” Alexander Chen, founding director of Harvard Law School’s LGBTQ+ Advocacy Clinic, previously told Bloomberg Law.

The HHS isn’t doing this alone but as part of the Biden administration’s government-wide implementation of Bostock, Katie Keith, a health care policy research professor at Georgetown University, said. Other agencies have issued similar policies, and the Obama administration undertook similar efforts after the decisions in United States v. Windsor and Obergefell v. Hodges, two landmark LGBT Supreme Court decisions, she added.

Employer insurance question

The majority of Americans, about 156 million people, get their insurance through their employers. Most employers rely on health insurance companies to process their claims and administer their plans as a third-party administrator, said Matthew Cortland, a disability rights attorney policy director at the health care advocacy organization Be a Hero Fund.

However, the question of how it applies to insurers has been a conflict over the past five years.

The Obama administration issued a rule in 2016 that said those protections applied to employer-sponsored plans that relied on insurance companies receiving federal funds as a third-party administrator, Keith said.

The 2016 rule was “clearly intended” to reach the third-party administrators of the employer-sponsored plans, Cortland said. However, the employer-sponsored plan insurance industry made clear it didn’t want the nondiscrimination law to apply to third-party administrators, and the 2020 Trump-era rule reversed that.

The Trump-era regulation allowed health care workers, hospitals, and insurance companies that receive federal funding to refuse to provide or cover any care for LGBT Americans.

The 2020 rule says health insurers aren’t bound by the ACA’s nondiscrimination provisions because they don’t provide health care, Wayne Turner, a senior attorney at the National Health Law Program, said.

The two previous regulations are still tied up in lawsuits, and this notice is likely to follow the same fate. Keith said there will likely be more litigation surrounding Section 1557 until the Supreme Court rules definitively on it or Title IX.

In the courts

The Obama administration made clear in 2016 rule that Section 1557’s protections extend to bar discrimination based on sexual orientation, gender identity, transgender status, and against women seeking abortion-related care.

But Judge Reed C. O’Connor of the U.S. District Court for the Northern District of Texas held in 2019 that the rule violates the Religious Freedom Restoration Act as to providers that have sincerely held religious beliefs against providing such care. But O’Connor didn’t block the HHS from enforcing the rule, leading the providers to appeal his decision.

The U.S. Court of Appeals for the Fifth Circuit recently sent the injunction question back to O’Connor for reconsideration. He ordered the parties to file supplemental briefs addressing the issue. The providers’ brief is due May 14. The HHS’s answering brief is due June 4.

The same issue also is pending in the U.S. Court of Appeals for the Eighth Circuit. The U.S. District Court for the District of North Dakota held in January that the rule can’t be enforced against providers and entities that have sincerely held religious beliefs that preclude them from providing the care. The HHS appealed.

A 2020 Trump administration rule modifying the regulation has been challenged by several LGBTQ groups and has been partially blocked in New York and the District of Columbia. A similar suit is pending in federal court in Massachusetts.

Those cases are on hold, for the most part, pending the Biden administration’s actions.

“There are live issues” both in Lambda Legal’s case against the Trump-era rule and other cases regarding Section 1557, Gonzalez-Pagan said.

“Equitable access to health care is a human right, and it is a gargantuan task, not just for us, but for the current administration to reverse the discriminatory course of the last administration,” Gonzalez-Pagan said. This is “one significant step, but not the end of the road.”

—With assistance from Mary Anne Pazanowski

Read more: 

• Complying with & embracing LGBTQ equality laws
• Advocates view health care as key to driving LGBTQ rights conversation
• Lawsuits pave the way for transgender insurance coverage

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