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Equal Protection Fight Against LGBTQ ‘Rollback Rule’ Proceeds

Originally written by Mary Anne Pazanowski and published on Bloomberg Law on Aug. 19, 2021.

An equal protection challenge to a Trump administration rule that rolled back protections for LGBTQ people set out in Obamacare’s antidiscrimination section may move forward, as the plaintiffs plausibly alleged the government was motivated by discriminatory intent, a federal trial court said.

The U.S. Health and Human Service Department’s motion to dismiss the claim failed, as the complaint plausibly alleges the 2020 rule will injure LGBTQ people by leading some insurance plans to deny coverage for medically necessary transgender health-care services when they would cover the same services for non-LGBTQ people, the U.S. District Court for the District of Massachusetts said.

The complaint’s charge of discriminatory intent is supported by allegations setting out the “historical” background of the Trump administration’s adoption of the rule, HHS’s administrative actions, and contemporary statements made by former members of the administration, Judge Patti B. Saris said.

This includes statements by former HHS Office for Civil Rights Director Roger Severino, who said the government’s power shouldn’t be used to “coerce everyone, including children, into pledging allegiance to a radical new gender ideology,” the court said.

At issue in the case is the validity of an HHS rule that repealed several provisions of a 2016 rule implementing Section 1557 of the Affordable Care Act. The provisions include the rule’s definition of discrimination “on the basis of sex” as including discrimination based on sexual orientation or gender identity, its prohibition on categorical exclusions on reimbursements for transgender-related care, and a requirement to treat people consistent with their gender identity.

This is one of six cases pending in federal trial courts challenging the “rollback” rule, the court said. Two of those courts have permanently blocked the HHS from enforcing provisions that eliminated the 2016 rule’s definition of discrimination on the basis of sex, did away with its provision prohibiting providers from denying or limiting health services to transgender people, and added Title IX’s religious exemption.

The court also disposed of the government’s motion to dismiss several claims on standing grounds. It determined that the plaintiffs—made up of individual LGBTQ people and a consortium of groups that provide health-care and advocacy services—have standing to fight the 2020 rule’s incorporation of Title IX’s abortion exemption, narrowing of entities subject to the rule, and repeal of the provision prohibiting categorical coverage exclusions.

But the plaintiffs don’t have standing to fight the that rule’s narrowing of mechanisms people can use to enforce the rule or its elimination of notice and language requirements intended to serve people with low English proficiency, the court said.

The plaintiffs can proceed despite the Biden administration’s stated intention to repeal the 2020 changes, the court said Wednesday.

Hogan Lovells US LLP, Transgender Law Center, Harvard Law School’s Center for Health Law and Policy Innovation, National Women’s Law Center, and Transgender Legal Defense & Education Fund Inc. represent the groups. The U.S. Department of Justice represents HHS.

The case is Boston All. of Gay, Lesbian, Bisexual & Transgender Youth v. U.S. Dep’t of Health & Human Servs., 2021 BL 312269, D. Mass., No. 20-cv-11297, 8/18/21.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Peggy Aulino at maulino@bloomberglaw.com

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