Two transgender women of color who have faced bias and hostility in health care services are suing the Trump administration for refusing to back down from its rule allowing medical practitioners to engage in anti-LGBTQ discrimination.
The experiences of both women — Tanya Asapansa-Johnson Walker and Cecilia Gentili — are laid out in the 70-page complaint, which includes stories from Walker about being infected with HIV after having to share needles for hormone injections because they weren’t covered by insurance, and a mental health worker blaming Gentili’s addiction issues on being transgender.
The lawsuit, filed by the Human Rights Campaign and the D.C.-based national law firm BakerHostetler, is pending before the U.S. District Court for the Eastern District of New York. The litigation was filed as part of the LGBTQ’s group new legal project and marks the first-time the organization has filed its own affirmative impact lawsuit on LGBTQ rights.
In great detail, the complaint lays out the anti-trans discrimination in the health care system faced by Walker and Gentili, two New York-based transgender women who both suffer from serious lung conditions. As noted in the complaint, both resorted to sex work “to access and afford what medical professionals and the laws of many jurisdictions consider basic and necessary health care.”
Walker, an Army veteran and two-time lung cancer survivor who co-founded the New York Transgender Advocacy Group, has experienced decades of “discrimination, verbal harassment, emotional abuse, and [being] subjected to excessive and aggressive physical contact and treatment in both seeking and/or receiving health care,” according to the complaint.
Detailed in the complaint are incidents of Walker — who began transitioning around 1988 after she survived a car accident, deciding that life was too short for her not to live authentically — being shamed by medical professionals, having her case file passed from one professional to another when they did not want to treat her, and being misgendered and deadnamed by medical professionals and staff.
“Ms. Walker purchased hormone medication from pharmacists and/or doctors in cash because insurance would not cover those treatments,” the complaint says. “She would have to share needles with other individuals in order to inject herself with the hormone medication that she purchased. She believes she was infected with HIV due to sharing needles while self-treating with hormones she purchased on the street to assist with her gender transition.”
When at the hospital to undergo surgery for lung cancer in 2013, Walker suffered from harassment from medical providers, who misgendered her, exposed her genitals to her roommate by failing to close the curtains around her bed, violently inserted and removed her catheter, negligently left her to lie in her own feces for hours and denied her HIV medication, the complaint says. The name of the hospital isn’t disclosed.
The complaint also details the experience of Walker, who seeking to undergo gender reassignment surgery, at VA hospitals, where multiple therapists refused to write her a letter for the procedure. One therapist didn’t provide an explanation for denying the care, another told Walker “it is too painful” without explaining the statement.
The story of Gentili, a transgender immigrant from Argentina who came to the United States in the early 1990s, involves similar experiences with medical providers, many of whom refused to provide her hormone treatment or access to gender reassignment surgery.
“For example, while she was in Miami, Ms. Gentili went to a doctor for routine treatment,” Gentili said. “When Ms. Gentili disrobed for the examination, the doctor responded with shock. He made it clear that he did not want to see her body and that he could not treat her. She left in fear in humiliation.”
According to the complaint, when seeking treatment for addiction, one psychiatrist completely blamed the problem on Gentili’s transgender status, and in the course of receiving treatment for chronic obstructive pulmonary disease and emphysema at a local hospital has been subjected to “misgendering, with a nurse telling her they do not have any ‘male rooms,’ even though she requested and had the right to be in a women’s room.”
When Gentili went to a dermatologist to seek treatment for psoriasis, the doctor “was more curious about her genitalia than anything else,” the complaint says.
Both women are filing a lawsuit against the Department of Health & Human Services for rescinding an Obama-era rule interpreting Section 1557 of the Affordable Care Act, which bars discrimination on the sex in health care, to prohibit discrimination on the basis of transgender status, including the refusal of transition-related care and gender reassignment surgery.
The Trump administration policy, which was made final earlier this month, relies on a narrow definition of the word “sex” the U.S. Supreme Court countermanded in the recent decision in Bostock v. Clayton County, which found anti-LGBTQ discrimination is a form of sex discrimination under the federal law.
The Human Rights Campaign, according to the complaint, sent a letter to the Trump administration urging HHS to wait until the Bostock ruling was handed down before making the rule, but HHS took that action anyway. The Trump administration hasn’t budged on its rule despite the Supreme Court decision effectively rendering it unlawful.
Alphonso David, president of the Human Rights Campaign, drew on the stories of Walker and Gentili in a statement asserting “LGBTQ people, and particularly transgender people, have been under constant attack by this federal administration.”
“Our plaintiffs, Tanya Walker and Cecilia Gentili — like many others in this country — should not be treated as second class citizens by a federal administration hell bent on removing legal protections afforded to transgender people,” David said. “It is time to end the constant fear and anxiety felt by many in the LGBTQ community that a person’s gender identity might determine the kind of medical care they receive.”
The lawsuit seeks a preliminary injunction against the Trump administration’s rule change on the basis that it violated the law in the aftermath of the Bostock decision, exceeds statutory authority under the Affordable Care Act, is arbitrary and capricious and violates the right to equal protection under the Fifth Amendment.
It should be noted in 2016, U.S. District Judge Reed O’Connor barring the U.S. government from enforcing Section 1557 of the Affordable Care Act in transgender-inclusive way with an injunction against the Obama-era rule, which remains standing in the aftermath of the Trump administration refusing to appeal the court order.
Jason Starr, director of litigation at the Human Rights Campaign, denied in a conference call with reporters, however, there would be any conflict if the 2016 order against the Obama-era interpretation stands and another court grants an injunction against the Trump administration reversal.
“I actually don’t think that there will be an issue with respect to whether those two injunctions will be in conflict with one another because our case is about looking specifically at the definition of sex discrimination,” Starr said, “and whether the department exceeded its statutory authority or otherwise violated the law by removing the provision and interpreting the rule is consistent with what the law requires, and how sex discrimination information is defined.”
Edward Jacobs, an attorney with Baker Hostetler, added the Supreme Court’s ruling in Bostock is “dispositive of this issue, and it should serve to invalidate as unlawful the 2020 rule.”
The litigation is at least the second lawsuit filed against the Trump administration over the anti-transgender rule. Earlier this week, Lambda Legal filed its own lawsuit against the HHS regulation, which also challenges the rule on the basis it violates the Bostock decision as well as protections under the U.S. Constitution.
Although other LGBTQ groups have typically handled legal work, David pointed out taking on litigation was a task he planned when taking the reins of the the Human Rights Campaign last year, adding it was consistent with the group’s mission of examining legislation and regulations.
“In this case, the Human Rights Campaign was responsible for generating thousands and thousands of signatures and comments from members in opposing these rules, and in these regulations that the Trump administration finalized,” David said. “So we were working in proposing the regulations that they are now finalized, and we are uniquely positioned to challenge these rules and these regulations as being contrary to the Affordable Care Act.”
David acknowledged other organizations do legal work, but added the Human Rights Campaign is in a good position to take it on because it engages in political work, legislative work and policy work.
“We are able to have that work complement each other, and be in the best position possible to defend the rights of LGBTQ people in appropriate cases.”
HHS didn’t respond to the Washington Blade’s request to comment on the lawsuit. The department has stated a policy on no comment on pending litigation.