gainst the backdrop of the United States’ continued struggle with the COVID-19 pandemic, LGBTQ+ rights advocates across the country are contesting a new federal rule issued by the Department of Health and Human Services (HHS) that repeals discrimination protections for LGBTQ+ individuals seeking healthcare. Among those leading the challenge is Omar Gonzalez-Pagan L’10 of Lambda Legal.
“Imagine losing access to health care or fearing discrimination in health care while at the same time being in the midst of a public health pandemic that has cost so many lives — over 200,000,” said Gonzalez-Pagan, who filed Whitman Walker Clinic v. HHS in the U.S. District Court for the District of Columbia. “It is a reminder of what is at stake in this litigation.”
Gonzalez-Pagan, a Senior Attorney and Health Care Strategist at Lambda Legal, has been in the forefront of some of the most consequential decisions on sexual orientation and gender identity discrimination in modern history. He was a member of the legal team that prevailed in Obergefell v. Hodges and secured marriage equality, and he helped win two landmark decisions holding that Title VII covers sexual orientation discrimination.
Now he joins his former classmates Michelle Banker L’10 of the National Women’s Law Center and Marsha Chien L’10 of the Washington State Attorney General’s Office in separate challenges to the new health care-related rule.
In 2016, the Obama Administration finalized a regulation (“2016 Rule”) that clarified how discrimination “on the basis of sex” should be interpreted under Section 1557. According to the 2016 Rule, the prohibition on sex discrimination includes discrimination based on transgender status and gender-based stereotypes. The 2016 Rule specifically prohibits health care providers, entities, and insurers (“health programs”) from excluding from its coverage any treatments related to gender transition, calling such an exclusion “discriminatory on its face.”
The Trump Administration’s new rule, proposed in May 2019 and published in June 2020, repeals the 2016 Rule’s interpretation of sex discrimination and eliminates explicit protections for transgender people. It also includes broad religious exemptions, which would allow health care units to opt out of providing certain treatments, such as reproductive and gender transition care, if the health care units felt that providing such care would conflict with their religious beliefs.
The complaints filed by Gonzalez-Pagan, Banker, and Chien argue that the Revised Rule is contrary to law, arbitrary and capricious, and unconstitutional.
In arguing that the Revised Rule is contrary to current federal law, each complaint points to the Supreme Court’s Bostock v. Clayton County, Georgia decision, which came down just days before the Revised Rule was published. In Bostock, the Supreme Court held that discrimination on the basis of sexual orientation or transgender status “necessarily entails discrimination based on sex.”
“They eliminated what we call the ‘unitary legal standard,’ which allows discrimination claims on each of the characteristics that are protected by the law to be adjudicated under the same legal standard,” Gonzalez-Pagan explained. “[HHS] want[s] them to be adjudicated under different standards, which complicates the ability of health care providers to comply with the rule, but also makes it more difficult to litigate intersectional discrimination claims, which we know are so real and affect many people.”
The Revised Rule’s broad exemptions permit health programs to refuse to treat or cover a patient if they believe that such treatment or coverage would be contrary to their religious beliefs. The Lambda Legal complaint argues that the exemptions are “contrary to law,” because they “endanger patients’ health in the name of advancing the religious beliefs of those who are entrusted with caring for them.”
On September 2, 2020, the federal district court in D.C. hearing Lambda Legal’s case entered a preliminary injunction prohibiting the revised rule’s provisions eliminating the definition of “on the basis of sex” and incorporating Title IX’s religious exemption from taking effect. In so doing, two of the most dangerous aspects of the Revised Rule have been put on hold as the case makes its way through the courts.
“This is a rule that targets the most vulnerable amongst us, all in the midst of a public health pandemic,” Gonzalez-Pagan said. “So, I want to keep in mind, for example, the TransLatin@ Coalition and its members who we represent, but who are disproportionately affected by this rule. Trans people already are disproportionately discriminated against and bear the brunt of violence, harassment, and discrimination in this country. We are fighting to ensure their broad access to health care — a human right.”