Federal court nixes HHS' LGBTQ+ nondiscrimination rule
The Mississippi judge says HHS has conflated protections based on sex, and protections based on gender identity.
Photo: Anastassiya Bezhekeneva/Getty Images
In a preliminary injunction last week, a federal judge in Mississippi has ruled that the Department of Health and Human Services' antidiscrimination protections for LGBTQ+ patients cannot be enforced. The ruling cited the Supreme Court's recent overturning of Chevron deference, which weakened the power of federal agencies to interpret and enforce regulations.
Published on May 6, HHS' rule outlines bans on sex-based discrimination in healthcare, including discrimination based on stereotypes, sexual orientation, gender identity, and pregnancy or related conditions.
The judge ruled in favor of the State of Tennessee, et al., which brought the lawsuit, in determining that HHS had conflated protections based on sex, and protections based on gender identity. The court also determined that the federal agency had improperly extended Bostock ruling protections to Title IX, which prohibit sex-based discrimination in federally funded programs.
In 2022, the Supreme Court ruled in Bostock v. Clayton County that sex discrimination includes gender identity and sexual orientation.
The plaintiffs claimed that HHS was seeking to "supplant health regulations with a regime that sides with HHS' commitment to gender ideology over medical reality." They added that the rule forces their compliance by threatening to strip billions of dollars in federal funding that assists vulnerable populations, and that healthcare organizations accepted this federal funding – and built their budgets around them – without knowing that Section 1557 of the Affordable Care Act would be used in such a manner.
HHS countered that its rule clarifies that "sex discrimination necessarily includes discrimination," and that a covered entity does not violate Section 1557 if it has a "legitimate nondiscriminatory reason for denying care or coverage to a transgender person."
WHAT'S THE IMPACT?
The Human Rights Campaign lambasted the court's decision, saying that without Section 1557 enforcement, healthcare providers who receive federal funding may be encouraged to discriminate and deny coverage and access to necessary medical services or broad swaths of patients.
"The discrimination LGBTQ+ people will continue to experience under this injunction is indefensible," said HRC president Kelly Robinson. "This ruling is not only morally wrong, it's also bad policy. Everyone deserves access to the medical care they need to be healthy and thrive. Instead, this court has sided with the fringe groups and politicians who want to bully our community at every opportunity. This isn't over: All LGBTQ+ people should receive the healthcare they deserve and be able to make informed decisions about our own bodies."
The Campaign said that if the injunction is allowed to stand, it may result in denial of coverage for the hormone replacement therapy that many transgender individuals regularly receive, verbal or physical abuse from doctors or other medical professionals directed at LGBTQ+ individuals, or denial of coverage in emergency situations because of gender identity.
Plaintiffs said they would suffer "irreparable harm" in the form of either nonrecoverable compliance costs or the loss of federal funds.
THE LARGER TREND
HHS under Biden has consistently sought to shore up protections for LGTBQ+ individuals. In May, the administration finalized a rule codifying protections for youth in foster care by clarifying how states should meet their statutory requirements to appropriately serve LGBTQI+ children.
The reason HHS honed in on LGBTQ+ youth in particular is that such children, according to the agency, are overrepresented in foster care and face significantly higher levels of bullying and harassment in care than other children.
Jeff Lagasse is editor of Healthcare Finance News.
Email: jlagasse@himss.org
Healthcare Finance News is a HIMSS Media publication.
