AG Lawsuit Blasts New Transgender Healthcare Rule

On Monday, two dozen state attorneys general filed a lawsuit against the Trump administration challenging the recent reversal of transgender healthcare protections.

The lawsuit was filed in New York federal court and is led by New York Attorney General Letitia James. Along with 23 other Democratic attorney generals from California, Massachusetts, Washington, Michigan, Pennsylvania, and other states, James argues that changing rules about transgender healthcare discrimination will make it difficult for transgender Americans to seek the care they need – whether in relation to transitioning or other health issues like the coronavirus.

“It is never acceptable to deny health care to Americans who need it, but it is especially egregious to do so in the middle of a pandemic,” James said, according to The Wall Street Journal.

Last month, the Department of Health and Human Services issued a new rule ending the protections for transgender people when it comes to health care under the Affordable Care Act. Before the rule, the Obama-era Affordable Care Act made it unlawful for healthcare providers, insurers, and other health organizations to discriminate against patients based on their age, race, color, disability, national origin or sex.

The Obama administration defined “sex” as encompassing gender identity, defining this identity as “male, female, neither, or a combination of male and female.” However, with recent rule changes, the definition of “sex” will instead be based on the “biological” definition of male and female.

As a result of the new rule, the attorneys general argue that transgender patients may find it difficult or impossible to access affordable care – including care surrounding gender transition. These troubles reportedly add to the healthcare challenges already faced by transgender patients.

In a 2016 study published in Current Opinion in Endocrinology & Diabetes and Obesity, researchers from hospitals and universities around the country concluded that transgender patients face several types of barriers when seeking healthcare. Financial barriers, discrimination, lack of cultural competence, health systems barriers, and socioeconomic barriers reportedly make it difficult or even impossible for transgender individuals to seek the healthcare they need.

Unfortunately, according to the transgender healthcare lawsuit, a lack of explicit protections for transgender patients will only make these barriers worse as healthcare providers are able to deny care to their patients based on discriminatory ideals.

“This is a mean and unconstitutional rule in any context,” California Attorney General Xavier Becerra said of the transgender healthcare rule, according to NBC News. “But authorizing discrimination in our health care system at this time, when our nation is suffering through a pandemic, is unbelievably immoral.”

According to the transgender healthcare lawsuit, the rule is not only unfair but also unlawful. The state attorneys general argue that, by allowing discrimination against transgender patients, the new rule violates the Equal Protection Clause of the Fifth Amendment.

The attorneys general also argue that the rule flies in the face of a Supreme Court decision – issued just days before the transgender healthcare rule was introduced – in Bostock v. Clayton County which found that discrimination on the based of sexual orientation or transgender status violates Title VII of the Civil Rights Act of 1964.

“The Rule ignores Bostock, redefining discrimination ‘on the basis of sex’ to exclude express regulatory protections against gender identity discrimination, removing the specific protections for transgender people contained in the 2016 Rule, and striking the express prohibitions on sexual orientation and gender identity discrimination from other HHS regulations,” the transgender healthcare lawsuit argues.

According to the attorneys general, the rule will have far reaching consequences if it is allowed to stand. By changing the way that health programs are defined to exclude health insurers, the HHS will allegedly allow health insurers to operate without being regulated by anti-discrimination measures. The new “arbitrarily and narrowly” defined view of healthcare will reportedly allow health insurance companies to fly under the radar in cases of discrimination.

“This redefinition—which is at odds with the plain language of Section 1557 and the statute’s core purpose of eliminating discrimination by health care providers and health insurance companies—will reduce express federal protections for all victims of health care discrimination,” the transgender healthcare lawsuit notes.

The transgender healthcare lawsuit seeks injunctive relief, declaring the rule to be unlawful and in violation of the Fifth Amendment.

Do you think the Trump Administration’s transgender healthcare rule change should be reversed? Share your thoughts in the comment section below.

The transgender healthcare lawsuit was brought by New York Attorney General Letitia James, along with attorneys general from California, Massachusetts, Colorado, Connecticut, the District of Columbia, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Wisconsin.

The Transgender Healthcare ACA Lawsuit is State of New York, et al. v. United States Department of Health and Human Services, et al., Case No. 1:20-cv-05583, in the U.S. District Court for the Southern District of New York.

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