December 31, 2016 at 5:49 pm EST | by Chris Johnson
Judge blocks rule against anti-trans health care discrimination
A federal judge has issued an injunction against a rule barring anti-trans discrimination in health care.

A federal judge has issued an injunction against a rule barring anti-trans discrimination in health care.

A federal judge in Texas with a history of anti-LGBT rulings issued an order Saturday blocking the Obama administration from enforcing the Affordable Care Act to prohibit discrimination in health care against transgender people and women who have had abortions.

In a 46-page decision, U.S. District Judge Reed O’Connor, an appointee of George W. Bush, issued a preliminary injunction against the rule on the basis it violates the Administrative Procedure Act “by contradicting existing law and exceeding statutory authority” and likely violates the Religious Freedom Restoration Act as applied to the plaintiffs, who are religious-affiliated medical providers challenging the regulation.

“The agency’s six-year delay in issuing the Rule strengthens the Court’s conclusion that the delay imposed by the injunction would work no significant harm on Defendants,” O’Connor writes. “The injunction would merely maintain the status quo — allowing HHS to prohibit sex discrimination in healthcare services as defined by Title IX and incorporated by Section 1557. If the Rule is invalid, it will be set aside in its entirety and the public interest will be served by the injunction. But even if the Rule is valid, the injunction will merely delay its implementation, pending final review on the merits.”

Defying the broadly accepted interpretation in the courts of “sex” to include transgender people, O’Connor writes Congress couldn’t have meant to include transgender people by barring gender discrimination in the Affordable Care Act because lawmakers spelled out both “sex” and “gender identity” as protected classes in the Matthew Shepard & James Byrd Jr. Hate Crimes Prevention Act and the Violence Against Women Act.

The sweeping nationwide injunction seems to enjoin the Obama administration from enforcing the rule not just for religious-affiliated providers, but for health care providers regardless of whether or not they’re religious affiliated. But O’Connor determined only the Obama administration’s interpretation of the law barring discrimination on the basis of “gender identity” and “termination of pregnancy” is enjoined, not the law itself, because the rule contains a severability provision.

O’Connor’s history of anti-LGBT rulings includes an injunction against Obama administration guidance prohibiting schools from refusing to allow transgender students to the restroom consistent with their gender identity and an order against married same-sex couples receiving benefits under the Family Medical Leave Act. (The FMLA ruling was rendered moot after the U.S. Supreme Court ruled in favor of marriage rights for same-sex couples nationwide.)

Mara Keisling, executive director for the National Center for Transgender Equality, called the decision “another predictable, baseless ruling by a judge who state officials sought out specifically because he could be relied on to deliver a ruling hostile to transgender people.”

“Numerous other courts have rejected Judge O’Connor’s reasoning, and every major medical association in the country has rejected the premise of this lawsuit and agreed that transgender people should be treated equally when it comes to their health care needs,” Keisling added.

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.

Texas Attorney General Ken Paxton filed the lawsuit against the rule in August on behalf of eight states, including Texas, Wisconsin, Nebraska, Kentucky and Kansas, along with the Becket Fund for Religious Liberty, which represented religious-affiliated health providers who object to the regulation on religious grounds.

Lori Windham, senior counsel at Becket Law, praised the O’Connor’s decision against the rule barring anti-trans discrimination as “a common-sense ruling.”

“The government has no business forcing private doctors to perform procedures that the government itself recognizes can be harmful, particularly to children, and that the government exempts its own doctors from performing,” Windham said. “Today’s ruling ensures that doctors’ best medical judgment will not be replaced with political agendas and bureaucratic interference.”

Based on arguments from the Becket Fund, O’Connor concludes in his decision the government health care plans don’t meet the rule’s own standard because Medicare, Medicaid and the military health care system known as Tricare are exempt from the requirement to cover transition-related care.

However, transgender advocates say the rule applies to both Medicare and Medicaid. Tricare recently implemented transition-related care after the U.S. military lifted its ban on transgender military service. (The Department of Veterans Affairs recently aborted a proposed rule to cover gender reassignment surgery.)

“Judge O’Connor is lying or wrong when he claims that federally funded plans like Medicare do not cover these services,” Keisling said.

Even with O’Connor’s injunction in effect, Keisling said the law’s prohibition on gender discrimination in health care remains in place and transgender people can still sue if they feel they’ve experienced discrimination in health care.

“The order does not change the fact that federal law bans gender-based discrimination,” Keisling said. “Transgender people who are turned away when they are sick, injured, or otherwise need health care, or are denied insurance coverage they’ve earned or paid for can still seek legal redress in the courts.”

The U.S. Justice Department declined to comment on whether the Obama administration will appeal the ruling. Should the administration decide to appeal, the case would go to the U.S. Fifth Circuit Court of Appeals. It remains to be seen whether the Justice Department under the Trump administration, which begins on Jan. 20, would continue defense of the regulation.

Katie Hill, a White House spokesperson, called the ruling a “setback,” but was optimistic it would hinder access health care for transgender people only on a temporary basis.

“Today’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,” Hill said.

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

8 Comments
  • Certain people who have no training in the law but who, for some reason, have been granted an LGBT media platform, continue to maintain that trans people have “robust” federal protections.

    Even before the Trump Junta begins its assault on the judiciary, trans people’s federal protections are no better – and no more “robust” – than the next federal judge says they’re not.

    Eight years of the Obama Administration stand poised to amount to squat.

  • Ladies rooms are for ladies, chix with dix are not ladies.

    • Hate to tell you this but I have been using the ladies toilet and dressing room at my gym for ages and there has never been a problem. Teach yourself something gender is not defined by the sexual organs its is determined in the brain as with everything else.

      So you try to stop me from using ladies toilet or dressing room and hint you cannot and will never stop me period.

      • Quit lying. You have not been using the ladies locker room at your gym. Or if you have, you’ve been very careful to keep your pants on and pass yourself off as a real woman. You have not been stripping completely nude and exposing your penis in front of other females without complaint. Unfortunately for you, people aren’t sick enough to allow that.

    • But many TERFs are vampires.

  • Just another form of the legal genocide of people deemed “different” by the right wingers.

    • “Legal genocide” aren’t you being a bit dramatic? To my knowledge no insurance of any kind whether public or private has ever covered plastic surgery. I don’t care what one has added or removed just don’t expect other people to subsidize or pay for it.

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