August 23, 2016 at 3:58 pm EDT | by Chris Johnson
New lawsuit seeks to overturn pro-trans rule in Obamacare
transgender, Supreme Court, gay news, Washington Blade

A lawsuit seeks to undo the pro-trans rule in Obamacare. (Washington Blade file photo by Michael Key)

A new lawsuit filed by religious-affiliated health care providers and five states seeks to overturn a regulation under Obamacare prohibiting discrimination against transgender people in transition-related care, including gender reassignment surgery.

The 79-page complaint, filed Tuesday in federal court in Texas, alleges the regulation improperly redefines the definition of “sex” under federal law, forces healthcare professionals to disregard their medical judgment and religious beliefs and undermines state authority to regulate health care.

“Ultimately, this case boils down to a very simple question of statutory interpretation: Can HHS redefine the term “sex” to thwart decades of settled precedent and impose massive new obligations on healthcare professionals and sovereign States?” the complaint says. “The answer is ‘no,’ and the new regulation must be set aside as a violation of the Administrative Procedure Act and multiple other federal laws and constitutional provisions.”

Defying legal precedent establishing that transgender discrimination amounts to gender discrimination under current law, the lawsuit seeks an injunction barring enforcement of the regulation on the basis it is invalid under the Administrative Procedure Act, the Religious Freedom Restoration Act and the First, Fifth and Fourteenth Amendments to the U.S. Constitution.

In May, the Department of Health & Human Services made final a rule interpreting Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of gender in health care, to apply to transgender and gender-nonconforming people, including for the purposes of transition-related care. Under the rule, a health care provider must provide transition-related care, including gender reassignment surgery, to a transgender person if that provider offers a similar service, such as hysterectomies.

The lawsuit takes issue with the lack of a religious exemption in the regulation, pointing out Title IX of the Education Amendments of 1972 — on which the rule is based — affords such a carve out.

“Although HHS was asked to include a religious exemption in the regulation due to the obvious implications for religious healthcare providers, HHS declined to do so, stating instead that religious objectors could assert claims under existing statutory protections for religious freedom,” the lawsuit says. “HHS also failed to provide any mechanism by which a religious entity could determine if it was entitled to any existing religious protections under the law.”

Leading the litigation on behalf of the states — Texas, Wisconsin, Nebraska, Kentucky and Kansas — is Texas Attorney General Ken Paxton, who has filed several lawsuits against the Obama administration for regulations advancing LGBT rights.

“This is the thirteenth lawsuit I have been forced to bring against the Obama administration’s continued threats on constitutional rights of Texans,” Paxton said in a statement. “The federal government has no right to force Texans to pay for medical procedures designed to change a person’s sex. I am disappointed in the Obama administration’s lack of consideration for medical professionals who believe that engaging in such procedures or treatment violates their Hippocratic Oath, their conscience, or their personal religious beliefs, which are protected by the Constitution and federal law.”

Representing the religious-affiliated providers is the Becket Fund for Religious Liberty, the same legal group representing Hobby Lobby and Little Sisters of the Poor in their challenges to the Affordable Care Act.

Lori Windham, senior counsel of the Becket Fund for Religious Liberty, said the lawsuit is necessary to ensure medical care remains between doctors and their patients without the federal government being involved.

“No doctor should be forced to perform a procedure that he or she believes will harm a child,” Windham said. “Decisions on a child’s medical treatment should be between families and their doctors, not dictated by politicians and government bureaucrats.”

The medical providers identified as plaintiffs in the case are the Franciscan Alliance, an Indiana-based Catholic non-profit system; the Speciality Physicians of Illinois, a Catholic non-profit offering services in the Chicago suburbs; and the Christian Medical & Dental Associations, another non-profit in Illinois.

Identified as a defendant in the lawsuit is Secretary of Health & Human Services Sylvia Burwell. In response to the Washington Blade’s request to comment on the lawsuit, HHS deferred to the U.S. Justice Department, which declined to comment.

The case has been assigned to U.S. District Judge Reed O’Connor, the same judge who on the day before the lawsuit was filed issued an order blocking the enforcement of guidance from the Obama administration prohibiting schools from discriminating against transgender students and barring them from using the restroom consistent with their gender identity.

Mara Keisling, executive director of the National Center for Transgender Equality, called the lawsuit “a thinly veiled attack on transgender people.”

“The ACA rule does not mandate what kind of care doctors can and cannot give,” Keisling said. “It bans discrimination. It’s there to make sure that transgender people can get the treatment we need without facing harassment – or worse. Over a dozen federal courts have confirmed that the term ‘sex’ in federal non-discrimination laws, including the ACA, applies to gender identity.”

Keisling said the regulation not only ensures transition-related care for transgender people, but prohibits medical providers from discriminating against transgender people seeking care for other health issues “from colds to cancer.”

“This regulation does not undermine medical judgment,” Keisling added. “It simply requires that medical decisions be made based on medicine, not prejudice.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

1 Comment
  • Let’s make this real simple — if for any utterly mad reason this discrimination lawsuit is *won* and the ACA is modified to allow covered entities to discriminate against transgender people, then being transgender should grant an exemption from the individual mandate. It is absolutely 100% unjust that people who already deal with a tremendous amount of prejudice in seeking employment should be legally mandated to pay for health insurance that we may not even be able to use because the doctors available near us turn out to be Christian bigots who feel they shouldn’t have to serve us.

    Paying for healthcare is mandatory now in this country. Providing that healthcare to all paying customers should also be mandatory. You can’t expect someone to pay for NOTHING.

© Copyright Brown, Naff, Pitts Omnimedia, Inc. 2020. All rights reserved.