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Federal judge blocks Obamacare's protections for transgender patients

POSTED: January 9, 2017 8:02 a.m.
Kelsey Dallas/

Lawmakers, lawyers and the leaders of religiously affiliated organizations are waging an ongoing war over what counts as sex discrimination.

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Three weeks before President Barack Obama leaves office, a federal judge dealt yet another blow to the president's signature policy, siding with religiously affiliated health care providers over the U.S. Department of Health and Human Services.

U.S. District Judge Reed O'Connor on Dec. 31 blocked the Affordable Care Act's so-called transgender mandate, which sought to end discrimination on the basis of gender identity within the health care system.

The rule, finalized by HHS on May 13, had been challenged by three religiously affiliated medical groups and eight states, who argued that it interfered with doctors' ability to make the best decisions for their patients and contradicted prior federal discrimination guidelines. The plaintiffs, who were represented by Becket Law, also said it would force faithful doctors to participate in procedures that violate their deeply held beliefs.

"The regulation violates the Administrative Procedure Act by contradicting existing law and exceeding statutory authority and the regulation likely violates the Religious Freedom Restoration Act as applied to private plaintiffs," O'Connor wrote in his order granting the injunction.

It's still unclear whether the Obama administration will appeal O'Connor's decision or stabilize transgender nondiscrimination policies before President-elect Donald Trump takes over. But a Republican-controlled White House and Congress could make religious freedom conflicts with the ACA moot by repealing and replacing the law.

The transgender mandate

The disputed HHS rule aims to protect transgender individuals under existing law, expanding on nondiscrimination measures laid out in Section 1557 of the ACA.

It was announced on the same day that a "Dear Colleague" letter, co-signed by justice and education department officials, instructed public school leaders to allow transgender students to use restrooms of their choice, rather than the facilities that correspond with their biological sex.

Both developments signaled the Obama administration's interest in protecting gender identity even as faith leaders and others continue to reject the concept. For example, the HHS rule said sex discrimination includes bias against a patient's "internal sense of gender, which may be male, female, neither or a combination of male and female."

"The rule forbids health care providers who take funding from the HHS from denying health care based on gender identity or denying patients treatment for sex-specific ailments like ovarian or prostate cancer simply because an individual identifies as a different sex," Time reported in May.

LGBT rights activists celebrated the HHS announcement, noting that further protections for their community were overdue.

"The rule does not mandate what kind of care doctors can and cannot give," said Mara Keisling, executive director of the National Center for Transgender Equality, in a statement to U.S. News & World Report in August. "It bans discrimination. It's there to make sure that transgender people can get the treatment we need without facing harassment — or worse."

However, others decried the HHS policy, noting that it put more than 900,000 doctors at risk of fines or other legal interference and threatened religious freedom. The rule did not include new religious exemptions, although HHS officials said it kept existing religious protections in place.

"Decisions on a child’s medical treatment should be between families and their doctors, not dictated by politicians and government bureaucrats," said Lori Windham, senior counsel at Becket Law, in an Aug. 23 press release announcing its lawsuit against the HHS final rule.

The group of religiously affiliated medical organizations and states represented by Becket Law claimed that the HHS final rule unlawfully expanded the definition of sex discrimination. "With a single stroke of the pen, HHS has created a massive new liability for thousands of health care professionals," the complaint reads.

O'Connor agreed with their arguments, granting an injunction on Dec. 31, one day before the final rule was to take affect, Reuters reported. His decision was not completely unexpected as he had previously blocked the "Dear Colleague" letter's policy for public schools, granting an injunction in August requested by 13 states.

Ongoing confusion

Both the HHS rule and "Dear Colleague" letter have added to growing confusion over what counts as sex discrimination and whether a definition provided by HHS or the Department of Education applies to other departments.

"Even if one agency's interpretation is not binding on other agencies for the purposes of other statutes, it may still be influential on other agencies," Harvard Law School professor Jeannie Suk Gerson told the Deseret News last year.

Federal discrimination guidelines are outlined in a handful of decades-old laws: Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972 and the Age Discrimination Act of 1975, to name a few.

In recent years, the Obama administration has made several announcements, clarifying how these nondiscrimination protections apply to transgender Americans.

This strategy has often frustrated even those who are inclined to agree with the clarifications, as Robin Fretwell Wilson, director of the Family Law and Policy Program at the University of Illinois College of Law, explained to the Deseret News in October.

"I think (Obama administration officials) think, 'Here's a great idea. Here's what we should do.' They haven't always had the judgment to see why that might cause a lot of distress in other people and to moderate," she said.

The health care plaintiffs in the recent HHS lawsuit rejected this approach, arguing that sex discrimination can't be so casually redefined.

"For decades, across multiple federal statutes, Congress has consistently used the term 'sex' to refer to an individual's status as male or female, as determined by a person's biological sex at birth," the complaint read.

What's next?

The White House hasn't yet announced whether it will appeal the new injunction, but a spokeswoman told Reuters that the Obama administration stands behind the HHS final rule.

O'Connor's "decision is a setback, but hopefully a temporary one, since all Americans — regardless of their sex, gender identity or sexual orientation — should have access to quality, affordable health care free from discrimination," said Katie Hill.

However, time is running out on the Obama administration's efforts to protect transgender Americans and stabilize the ACA as a whole.

The health care law has faced hundreds of court challenges, many of which had to do with religious freedom and the law's contraception mandate. It's still viewed as enemy No. 1 by many Republican lawmakers, who count Trump as a key ally, as NPR reported this week.

"There's no getting around the fact that lots of Republicans campaigned hard against the ACA and a lot of them won, including the person at the top of the ticket," said James Capretta, an American Enterprise Institute scholar, to NPR.

By repealing the ACA and reversing other recent actions related to sexual orientation and gender identity, a Republican-controlled Congress and Trump could drastically change the tone of ongoing debates over religious freedom and health care, The Washington Post reported.

"Many of the current religious freedom battles could quickly disappear during Trump's presidency," the article noted.
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