(WB) A federal judge issued an order Monday blocking the Trump administration from enforcing a rule allowing health care providers to discriminate against transgender patients — one day before the regulation was set to go into effect.
U.S. District Judge Frederic Block, a Clinton appointee, draws heavily in his decision on the U.S. Supreme Court’s recent landmark decision in Bostock v. Clayton County, which determined anti-LGBT discrimination is a form of sex discrimination.
“The Court reiterates the same practical concern it raised at oral argument when the Supreme Court announces a major decision, it seems a sensible thing to pause and reflect on the decision’s impact,” Block writes. “Since HHS has been unwilling to take that path voluntarily, the Court now imposes it.”
The Department of Health & Human Services rule, made final in June, vacated an Obama-era regulation interpreting the ban on sex discrimination in Section 1557 of the Affordable Care Act to apply to cases of anti-trans discrimination.
Block takes a swipe at the Trump administration for vacating the rule both before the Supreme Court had a chance to render a decision in the Bostock case and reusing to change course after it was handed down.
“By its own admission, HHS knew that the case was pending and would have ‘ramifications;’ it must also have known that a decision would be handed down before the end of the Supreme Court’s term,” Block writes. “It then had an [admittedly brief] opportunity to re-evaluate its proposed rules after the case was decided contrary to its expectations.”
The lawsuit was filed in June by the Human Rights Campaign and the BakerHostetler law firm in the U.S. District Court for the Eastern District of New York on behalf of two transgender women of color — Tanya Asapansa-Johnson Walker and Cecilia Gentil — with long histories of discrimination in health care.
Alphonso David, president of the Human Rights Campaign, said in a statement the order was a win for both for plaintiffs and marginalized communities suffering from the “impacts of the twin pandemics of COVID-19 and racialized violence.”
“We are pleased the court recognized this irrational rule for what it is: discrimination, plain and simple,” David said. “LGBTQ Americans deserve the health care that they need without fear of mistreatment, harassment, or humiliation.”
The order stands in contrast to a decision from U.S. District Judge Reed O’Conner in 2016 barring the U.S. government from enforcing the Obama-era rule against anti-transgender discrimination in health care.
Now that an order has been handed down barring HHS from enforcing the law as well to prohibit anti-transgender discrimination it wasn’t immediately clear how the department would implement Section 1557 of the Affordable Care Act.
The 2016 order, however, predates the Bostock decision, which Block indicates is the correct guide in reaching the conclusion the Trump administration’s anti-trans exclusion is, in fact, inconsistent with the law and should be reversed.
An HHS spokesperson in response to a Washington Blade inquiry on enforcement deferred the Justice Department, which didn’t respond to a request to comment.
“We are disappointed in the court’s decision and refer you to DOJ for further comment,” the HHS spokesperson said.
Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association.