Federal judge blocks Trump administration's anti-transgender health care rule


The Department of Health and Human Services' was trying to remove language protecting transgender people from health care discrimination.

A federal judge on Monday halted a Trump administration rule that rolls back protections against anti-LGBTQ discrimination in health care.

The regulation would have gone into effect on Tuesday had U.S. District Court Judge Frederic Block not found that it violated a recent U.S. Supreme Court decision, among other things.

The Human Rights Campaign and co-counsel BakerHostetler brought the case against the Trump administration on behalf of two transgender women, Tanya Asapansa-Johnson Walker and Cecilia Gentili.

The Department of Health and Human Services first finalized the rollback in June. The new Trump administration policy would have removed language that clearly protected transgender people against sex discrimination in health care — in other words, by removing "gender identity" from the list of protected categories.

Rodrigo Heng-Lehtinen, the executive director of the National Center for Transgender Equality, said at the time the new Trump era policy was finalized that it would be particularly harmful to transgender people during a pandemic.

"This rule sends a message that medical providers can turn people away from a COVID-19 test or treatment simply because of who they are," they said. "We should be making it easier to get health care in a time of need, not harder. This is heartless."

Block wrote this week that the Trump-era rule would have gone against the court's decision in Bostock v. Clayton County.

In June, the U.S. Supreme Court ruled that under Title VII of the Civil Rights Act of 1964, discrimination based on sex includes discrimination against LGBTQ people. Although the case focused on LGBTQ workers, LGBTQ advocacy groups have said the decision clearly supports the inclusion of LGBTQ people in other cases of sex discrimination.

"HHS was apparently confident that the Supreme Court would endorse the Administration’s interpretation of sex discrimination ... its confidence was misplaced," Block wrote.

Block also found that HHS acted "arbitrarily and capriciously" in enacting the new rule.

Whether an agency acted "arbitrarily and capriciously" is a test judges can use to determine if an agency has violated the Administrative Procedure Act. In two-thirds of the cases where federal judges have ruled against the Trump administration, the administration has been accused of violating the Administrative Procedure Act, the Washington Post reported last year.

Block has not yet issued a final opinion on the matter and is continuing to hear augments on the case. The final decision can also be appealed.

Still, Sasha Buchert, a senior attorney at Lambda Legal, a national legal organization focused on LGBTQ equality, said this week's development will help ensure that LGBTQ people are able to get the health care services they need.

According to a 2017 survey from the Center for American Progress, 29% of transgender people who had visited a health care provider in the past year said they were refused services because of their actual or perceived gender identity.

"The Court yesterday confirmed what we have been telling HHS and this Administration for three and a half years: that they have colossally failed to follow the rule of law," Buchert said. "HHS willfully ignored Bostock and other federal case law precedent in order to obsessively pursue its disgraceful objective of trying to strip life-saving protections from vulnerable communities."

Buchert noted that other agencies have continued to move forward with anti-LGBTQ rulemaking that she says goes against the law. Buchert said that HUD's proposed regulation on single-sex shelters, for example, which would encourage shelter staff to judge people's appearance, such as facial hair, to guess if there are transgender, "invites discrimination and willfully ignores state and federal law."

Published with permission of The American Independent Foundation.