Judge Blocks HHS Rule Permitting Discrimination Against LGBTQ Patients

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A federal judge blocked a Trump administration rule that would have eliminated protections against health care discrimination for lesbian, gay, bisexual, transgender, and queer/questioning (LGBTQ) people.

On June 12, the Office of Civil Rights (OCR) in the Department of Health and Human Services (HHS) revised an Obama-era rule that interpreted discrimination “on the basis of sex” to include discrimination due to a person’s sexual orientation or gender identity. Under the change, the definition of sex discrimination referred solely to a male or female, “as determined by biology,” HHS stated in a press release (see Psychiatric News).

HHS announced the change just days before the Supreme Court ruled that Title VII of the Civil Rights Act of 1964—which prohibits employee discrimination based on race, religion, national origin, and sex—applies to LGBTQ employees as well (see Psychiatric News).

Several lawsuits were filed challenging HHS’s rule, arguing that it would threaten the ability of LGBTQ individuals to access medical care and that the rule is incompatible with the Supreme Court’s decision against employee discrimination. In the first ruling in these cases, Judge Frederic Block of the U.S. Eastern District of New York issued a preliminary injunction in which he agreed that the rule is contrary to the Supreme Court’s decision and found that HHS acted arbitrarily and capriciously in enacting the rule.

“When the Supreme Court announces a major decision, it seems a sensible thing to pause and reflect on the decision’s impact,” Block wrote in his ruling. “Since HHS has been unwilling to take that path voluntarily, the Court now imposes it.”

The rule change would have gone into effect on August18, but because of Block’s injunction, the original definition of “on the basis of sex” will remain intact, pending further actions by the court.

At least four other legal challenges to the rule are pending before courts across the country, said Katie Keith, J.D., M.P.H., in a blog for Health Affairs. Other lawsuits challenge additional provisions in the rule, such as the elimination of language-access protections and addition of religious exemptions. “Each lawsuit asks the court to vacate all or parts of the Trump-era rule and prevent OCR from implementing or enforcing its provisions,” Keith wrote.

The case in which Block issued his ruling was filed by two transgender women who have serious medical conditions, Tanya Asapansa-Johnson Walker and Cecilia Gentili. Both require ongoing medical care, Walker for her HIV-positive status and prior experience with lung cancer and Gentili for chronic obstructive pulmonary disease and emphysema.

Both allege that they have experienced discrimination based on their transgender status. Throughout her treatment for lung cancer, Walker “was subject to misgendering, the exposing of her genitals, physical abuse, and refusals to provide medications,” according to Block’s order.

Gentili has had similar experiences. During routine doctor visits, “doctors have mocked Gentili’s body, refused to treat her, and used offensive language towards her after realizing she is transgender,” the Block order states.

In 2018, APA issued a position statement that urges the repeal of laws and policies that discriminate against transgender and gender-diverse individuals and opposes all public and private discrimination against transgender and gender-diverse individuals. The Supreme Court’s decision affirmed that position in its ruling, Jack Drescher, M.D., noted in an email. Drescher is a psychoanalyst and clinical professor of psychiatry at Columbia University and served on the DSM-5 Work Group on Sexual and Gender Identity Disorders. Block’s ruling seems entirely consistent with the Supreme Court’s ruling, Drescher continued. “What is truly sad here is how much wasted time and effort this administration has put into creating ways to exacerbate the distress of an already stigmatized minority group.” ■