Just three days after the Trump administration issued a new rule that would promote discrimination against LGBTQ+ people seeking health care, the Supreme Court of the United States (SCOTUS) delivered a landmark ruling Monday (June 15) that undercuts the rationale behind the Trump rule. Now Lambda Legal and other opponents of the rule have launched a #StoptheRulecampaign urging HHS to withdraw the regulation.
At issue is whether Affordable Care Act’s ban on sex discrimination should be interpreted to prohibit discrimination against transgender and gender non-conforming people. Often referred to as the Health Care Rights Law, Section 1557 of the ACA was the first national statute to ban sex discrimination in health care. The Obama administration had issued its own rule interpreting 1557’s prohibition on sex discrimination to ban bias against transgender and gender non-conforming people, as well as discrimination based on pregnancy or use of abortion care. Significant percentages of transgender people have reported experiencing health care discrimination, ranging from mis-gendering by health care providers to outright refusal to provide gender-affirming care. LGBTQ+ people often report delaying or skipping care because of fear of discrimination.
The Trump administration released the final version of its own 1557 rule on Friday, in the middle of LGBTQ+ Pride Month and on the fourth anniversary of the massacre at the gay Pulse nightclub.
Congressional leaders released a statement strongly condemning the Trump 1557 rule:
“Section 1557 provides critical protection precisely because it recognizes that discrimination can be intersectional – meaning that someone is discriminated against because of multiple identities; for example, because they are Black and a woman, or because they are an immigrant and LGBTQ, or because they are elderly and disabled. The Administration’s efforts to unlawfully roll back Section 1557’s protections is shameful. It not only denies people their lived experiences but undermines their ability to seek health care with dignity.”
The Trump rule eliminates Obama administration language protecting transgender people, and boldly declares that “HHS will enforce Section 1557 by returning to the government’s interpretation of sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.” Both the Obama and Trump rules failed to prohibit discrimination based on sexual orientation.
However, that narrow definition of “sex discrimination” was soundly rejected by the Supreme Court Monday, in a 6 to 3 majority ruling on three consolidated LGBTQ employment discrimination cases. Trump’s own conservative appointee to the court, Neil Gorsuch, wrote the majority opinion, which concluded that discrimination against LGBTQ+ people is barred by the sex discrimination prohibitions in the 1964 Civil Rights Act.
The Gorsuch opinion included these statements:
“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear… It is impossible to discriminate against a person for being homosexual or transgender without discriminating … based on sex.” He explained that firing a gay male employee for being attracted to men, but not firing a female employee who is attracted to men, constitutes sex discrimination.”
Lambda Legal and other opponents of the Trump 1557 rule have quickly seized on the SCOTUS ruling to argue that the rule’s narrow definition of sex discrimination is now officially invalid, and thus the rule should be withdrawn before it is published in the Federal Register
“Even though the Supreme Court’s decision from earlier this week makes clear that HHS is wrong on the law, the revised rule is still scheduled to be officially published THIS Friday. Lambda Legal is prepared to sue if they do, but everyone should let HHS know that their relentless attacks on our health care are unacceptable.”
The Trump 1557 rule would take effect 60 days after its publication in the Federal Register. Lambda Legal and the Human Rights Campaign have both pledged lawsuits seeking to enjoin and overturn the rule. In the meantime, Lambda Legal is coordinating the gathering of signatures on a petition to HHS through a #StoptheRule social media campaign. Go HERE to sign the petition.