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Biden administration to ban discrimination against LGBTQ patients

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The Biden administration announced on Monday it would enforce civil rights protections under Obamacare to prohibit discrimination in health care against patients for being LGBTQ, reversing policy during the Trump years excluding transgender status as a protected characteristic under the law.

The Department of Health & Human Services declared it would enforce Section 1557 of the Affordable Care Act, which prohibits discrimination in health care on the basis of sex, and begin to take up cases of discrimination based on sexual orientation and gender identity.

HHS Secretary Xavier Becerra said in a statement the Supreme Court has “made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation.”

“Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences,” Becerra said. “It is the position of the Department of Health and Human Services that everyone — including LGBTQ people — should be able to access health care, free from discrimination or interference, period.”

The move is consistent with the executive order President Biden signed on his first day in office directing federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the furthest extent possible. Federal agencies were directed to comply within 100 days of the executive order, which is about now and a short time after Biden’s first 100 days in office.

The announcement with respect to Section 1557 comes on the same day as the hearing took place this morning in Bagly v. HHS, a case before a federal court in Massachusetts challenging Trump’s undoing of transgender protections under the law. An attorney with the U.S. Justice Department announced a new notice of proposed rule-making is coming with respect to Section 1557.

Sharita Gruberg, vice president for the LGBTQ Research and Communications Project at the Center for American Progress, said in a statement the change “assures LGBTQ people that their rights will be upheld at the doctor’s office, vaccine sites, and everywhere else they seek health care and coverage.”

“The administration’s announcement that it will enforce these protections are a critical step toward addressing vaccine hesitancy among LGBTQ people, a population that has been disproportionately impacted by the pandemic and seriously harmed by the previous administration’s attempts to permit discrimination against LGBTQ patients, Gruberg added.

The past three administrations have instituted policy on LGBTQ protections based on their interpretation of Section 1557. Each move had varying implications and directions for LGBTQ patients.

The Obama administration issued a rule in 2016 interpreting Section 1557 to apply to cases of anti-transgender discrimination and discrimination against women who have had abortions, which was consistent with court rulings at the time. However, that move was enjoined by a nationwide court order in Texas as a result of litigation filed by Texas Attorney General Ken Paxton.

The Trump administration, shortly after the Supreme Court’s ruling in Bostock, made final a regulation proposed last year rescinding the Obama administration’s transgender protections under Section 1557. Faced with criticism, the Trump administration defended itself by saying its move was consistent with the court order in Texas, although it seemed to ignore the decision from the higher court.

The new rule from HHS goes above and the beyond the Obama administration by instituting protections based on both sexual orientation and gender identity. It wasn’t immediately clear whether the proposed rule would be a new regulation entirely, or seek to modify the changes that were made in the two previous administrations. The Blade has placed a request seeking comment with HHS.

Susan Bailey, president of the American Medical Association, said in a statement the new HHS rule is a welcome change after the Trump administration rescinded protections for transgender patients.

“It’s unfortunate that such an obvious step had to be taken; the AMA welcomes this common-sense understanding of the law,” Bailey said. “This move is a victory for health equity and ends a dismal chapter in which a federal agency sought to remove civil rights protections.”

Discrimination in health care is an experience transgender people commonly report. The U.S. Transgender Survey in 2015 found one-third of responders said they had at least one negative experience in health care related to being transgender. Further, 23 percent of responders said they didn’t seek health care because they feared being mistreated and one-third said they didn’t go to a provider because they couldn’t afford it.

A Center for American Progress survey from 2018 had similar findings with respect to transgender people and patients with being gay, lesbian and bisexual or queer. Eight percent of responders said a doctor refused to see them because of their perceived or actual sexual orientation, while 28 percent of providers said a doctor refused to see them because of their actual or perceived sexual orientation.

Hospitals, especially religiously affiliated providers, refusing to provide transition-related care, including gender assignment surgery, is another frequently reported incident for transgender patients. The American Civil Liberties Union, for example, has filed litigation against hospitals under Section 1557 for refusing to perform the procedure.

Rachel Levine, assistant secretary of health and the first openly transgender presidential appointee to obtain Senate confirmation, hailed the HHS rule change in a statement.

“The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk,” Levine said. “No one should be discriminated against when seeking medical services because of who they are.”

Although the Biden administration’s announcement is a welcome move for LGBTQ advocacy groups, the change is not without critics.

John Banzhaf, a law professor at George Washington University who declares himself a supporter of transgender rights, said the policy could have unintended consequences, which he said has become evident in the British health system.

“[Transgender] individuals with a penis but no vagina are being asked to have medical tests on their non-existent cervices, while [transgender] persons with a vagina and cervix will not be asked, under new guidelines which appear to place lives at risk and encourage a physically impossible medical exam on organs which simply do not exist,” Banzhaf said. “And, carrying this absurdity to its totally illogical conclusion, a patient with a penis and a full beard was offered a cervical test because, despite his clearly masculine appearance and style of dress, he registered himself as being gender neutral.”

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Federal Government

Trump anti-trans EO used to deny health care to Democrats, unmarried vets

Veterans warn impacts will be felt disproportionately by women and LGBTQ people.

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President Donald Trump (Washington Blade photo by Michael Key)

New rules would allow doctors at the U.S. Department of Veterans Affairs to deny care to unmarried veterans and Democrats at hospitals across the country, pursuant to President Donald Trump’s anti-trans executive order, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”

According to the Guardian, which was first to report the hospital guidelines on Monday, they apply also to psychologists, dentists, and other providers — allowing for individual staff to refuse care for veterans on the basis of characteristics not covered under federal law, which proscribes discrimination on the basis of race, color, religion, and sex.

Doctors can also be barred from working on VA hospitals based on their marital status, political party affiliation or union activity, per documents reviewed by the Guardian. The agency confirmed changes to the rules came in response to Trump’s executive order.

Specifically, per the paper:

Until the recent changes, VA hospitals’ bylaws said that medical staff could not discriminate against patients “on the basis of race, age, color, sex, religion, national origin, politics, marital status or disability in any employment matter”. Now, several of those items — including “national origin,” “politics” and “marital status” — have been removed from that list.

Similarly, the bylaw on “decisions regarding medical staff membership” no longer forbids VA hospitals from discriminating against candidates for staff positions based on national origin, sexual orientation, marital status, membership in a labor organization or “lawful political party affiliation.”

Experts warn that changes to the guidelines may lead to situations where, for example, doctors may question patients about whether they attended a rally for a political candidate or in support of gay rights, potentially denying care on those bases or because of the reasons given for seeking care, such as cases where the patient may report a rape or sexual assault.

Veterans warn impacts will be felt disproportionately by women and LGBTQ people.

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National

New LGBTQ+ Archive to save scrubbed federal resources

Trump’s anti-DEI crusade seeks to erase entire communities

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President Trump’s attacks on DEI have led government agencies to scrub their sites of LGBTQ content. A new initiative aims to preserve the information. (Washington Blade file photo by Michael Key)

Generally, when someone says, “The internet is forever,” it is not a positive statement. 

But for Shae Gardner, policy director at LGBT Tech, it has become a lifeline as she and her team have spent the last couple of months tracking down documents removed from government websites.

After a series of anti-DEI and LGBTQ executive orders, thousands of pages across the federal government have been removed or altered—with LGBTQ topics taking a big hit.

The LGBTQ+ Archive, launched by LGBT Tech last month, aims to restore lost resources about the LGBTQ community into a centralized hub. They have tracked down approximately 1,000 documents—all available as downloadable PDFs and sorted by agency—but know that more are missing. Users can submit missing documents or requests for missing documents. 

Archived resources range from the 2023 Equity Action Plans mandated under Biden to HIV resource sheets. 

Sid Gazula, LGBT Tech’s Google Policy Fellow said reviewing the documents scrubbed from the Department of Health and Human Services was striking. “You have these important documents related to people’s health. Health isn’t subjective,” he said, “The fact that an executive order could take away all this information was very eye-opening.”

For Gazula it made an already urgent project more urgent. “We, as a community, need access to these resources,” he said, “The archive presents a mechanism to get that access out there.”

The LGBT community has a long history of engaging in archival work, explained K.J. Rawson, professor at Northeastern University and director of the Digital Transgender Archive, in an email. He described archives as “key avenues for preserving and making accessible queer and trans history.”

Since mainstream archives often erase or misrepresent the LGBTQ community, Rawson pointed out that LGBTQ archives “fight against this trend and wrest control back into LGBTQ+ hands,” citing Cait McKinney’s phrase “information activism.” 

Gardner feels appreciative of the history of LGBTQ preservation, which guided their work: “I want to make it abundantly clear that we are not the first or only organization doing this sort of preservation work.” She also mentions the Internet Archive, a non-profit library of web pages, which was invaluable during their research.

When the Blade asked about the LGBT Archive, Rawson described it as “crucial!” He elaborated that, “the overt erasure of LGBTQ+ people––but especially trans people––from federal websites has been a hostile move that’s one part of larger efforts to strip us of our humanity and our history.”

Beyond creating a record for the future, the archive is also useful in fighting for LGBTQ representation today. Gardner explained that numerous journalists and advocacy groups have already been using it. Gazula, who is a student, shared that some of their professors said it was an important resource for academic work. 

To access it, users have to create an account. Gardner said this is not for marketing. Instead, they want to “put a stop gap between us and malicious actors and attacks on the site” and have a basic understanding of who is using the site. She assures users that the data is backed up on servers globally, but encourages folks to download freely from the archive. 

“We decided that we wanted every document and resource on it to be a PDF that they would be able to save it themselves,” said Gardner, “This is not only meant to be very user-friendly, but is also meant to help with those resources being dispersed and being kept.”

“It is the history of our community,” Gardner continued, “we deserve to have continued access to it.”

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U.S. Federal Courts

Meeting the moment: Democracy Forward takes prominent role in fighting Trump regime

Group is involved in cases including some before the Supreme Court that concern LGBTQ rights

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Just weeks before the U.S. Supreme Court is expected to decide a handful of cases with potentially huge implications for LGBTQ rights in America, the Washington Blade spoke with the president of a group that is involved in several of those legal battles and others that have taken center stage in President Donald Trump’s second term.

Since 2021, Skye Perryman has served as president and CEO of Democracy Forward, a legal services and impact litigation group distinguished in part by its focus, “in our organizational hiring, and in our growth, and in our organizational culture,” on “having as many highly talented lawyers full-time, on our staff, as we possibly can.”

The moment requires it. Since the start of the new administration, demand for legal representation has skyrocketed as people and communities, from government workers to university administrators and LGBTQ populations, have been targeted.

Additionally, following his return to the White House Trump has launched an unprecedented assault against lawyers and law firms, which has discouraged attorneys from representing clients and causes that might put them at odds with the administration or with the president himself.

As queer Russian-American journalist and author M. Gessen said recently, “the judiciary is the hardest thing to restore once it has been destroyed. It’s a very, very complicated universe — of courts and lawyers and cultural norms and educational institutions and law firms as institutions that are distinct from individual lawyers — and he’s attacking every one of those elements.”

“We’ve grown substantially in order to be able to meet this moment, which is why we’re able to be in court,” Perryman told the Blade, “because we have lawyers on our staff,” about 50 full-time attorneys right now, which means “we’re not as dependent on pro bono legal services.”

Trump’s attacks on the rule of law have been complicated by the surrender of firms that have struck deals with the president to spare themselves from executive orders that present existential threats to their survival but which others have chosen to fight in court.

Perryman said that as a result of these settlements, “there are less legal services available at a time when the major tool that the American people have right now to defend their rights against their government is the ability to initiate litigation.”

In back-to-back rulings in late March followed by a decision early last month, Judges John Bates, Richard Leon, and Beryl Howell of the U.S. District Court for the District of Columbia struck down Trump’s executive orders against the firms Jenner & Block, WilmerHale, and Perkins Coie, ruling them unconstitutional. (Perryman is an alum of WilmerHale and of Covington & Burling, another top firm that is fighting an order targeting them.)

Nevertheless, “there has been an exponential increase in demand for our work as an organization, for our lawyers, because there has been a reduction in legal services provided by many firms in the private bar,” Perryman said.

She hedged that many firms have continued “doing pro-democracy work” since the start of Trump’s second term, but added there still “has been an overall significant gap in the legal services the private bar has been providing.”

Asked whether she has seen evidence that this has impacted litigation against Trump’s anti-trans executive orders and policies, Perryman declined to address specifics. “What we’ve seen more broadly is just firms not wanting to take on causes that would put them in the crosshairs of the administration,” she said, but noted that “of course, this is an administration that’s already shown that it’s very focused on rolling back the rights of the LGBTQ community.”

Pushing back against attacks on the rule of law

“There’s not a question in these courts’ minds about the constitutionality of what the administration is doing,” Perryman said. “You see very strong language that unequivocally makes it clear that a variety of our constitutional amendments and provisions are threatened and violated with respect to a president that is seeking to retaliate and to engage in these direct attacks on lawyers and law firms.”

Moreover, “These judges have all spent time in their opinions talking about the corrosive effects [of] law firms that have settled their matters, the fact that the administration appears to be have been able to resolve its concerns about a law firm merely if they’re willing to settle,” she said. “They really call that out as a pretext.”

Perryman added that the judges who have ruled in favor of plaintiffs challenging the Trump administration represent a variety of ideological backgrounds, or were nominated for their positions by presidents from both parties, which “really shows that these attacks and the response and our Constitution’s response to these attacks is something that transcends politics and transcends the general way that we look at politics in this country.”

“In the United States, the president cannot retaliate against people just because he doesn’t like who their clients were, and he can’t deprive people of legal representation,” Perryman said. “And I think that you see those themes come through very clearly in the opinions.”

Major victories and what’s on the docket now

“In many instances, we’ve co counseled and developed cases alongside Lambda and other groups specifically and exclusively focused on LGBTQ rights,” Perryman said, referring to Lambda Legal, an LGBTQ focused organization that does a lot of impact litigation.

“Democracy Forward’s expertise is very broad, and we do a lot of work with respect to the federal government and federal agencies and how those agencies work for people,” she added.

Perryman pointed to the successful legal challenge led by Democracy Forward against the Office of Management and Budget’s Jan. 28 memo ordering a nationwide hold on disbursements of federal grants and loans. The order came pursuant to Trump’s executive orders targeting DEI and the trans community, so LGBTQ nonprofits were disproportionately impacted among the groups receiving public funds.

The lawsuit filed on behalf of Democracy Forward’s plaintiffs including SAGE, which provides a variety of critical services for LGBTQ elders, resulted in a preliminary injunction issued by Judge Loren AliKhan of the U.S. District Court for the District of Columbia, which remains in place, protecting organizations that she noted would otherwise have faced “economically catastrophic—and in some circumstances, fatal” consequences.

“That litigation is helping the whole country, not just LGBTQ communities,” Perryman said, noting that in this case as in other cases, LGBTQ people and communities are often disproportionately impacted by litigation that, facially or at first blush, may not seem to directly concern their rights or welfare.

Perryman credited SAGE for suing the administration during its early days when the executive orders targeting lawyers and law firms were new and there was not much appetite for challenging the new Trump regime in court. “Everyone was very scared,” she said “and we’re just so proud of our clients.”

Another example, she noted, is Medina v. Planned Parenthood South Atlantic, which is pending a decision by the Supreme Court. The case is “sort of around an executive order that the governor of South Carolina put in place that removes facilities that provide abortion from the Medicaid provider list,” Perryman said.

She continued, “What that effectively does is it cuts off access, for patients that are using Medicaid, to critical services provided by Planned Parenthood clinics in the state, services that go far beyond just abortion care. Planned Parenthood, of course, provides so many sexual and reproductive health services, including to the LGBTQ community. And so I think that is a case that is also worth mentioning. We filed a brief there on behalf of current and former senior HHS administrators and others.”

Also before the Supreme Court as the June term nears its conclusion are cases like Kennedy v. Braidwood Management, Inc., which could imperil coverage under the Affordable Care Act for a broad swath of preventative health services and medications beyond PrEP, which is used to reduce the risk of transmitting HIV through sex.

Plaintiffs brought the case to challenge a requirement that insurers and group health plans cover the drug regimen, arguing that the mandate “encourage[s] homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.”

The case has been broadened, however, such that cancer screenings, heart disease medications, medications for infants, and several other preventive care services are in jeopardy, LGBTQ and civil rights organizations have argued.

“In the Braidwood case, we filed a brief representing medical groups that outlines the real harms that could result if the court adopts what is, we believe, quite a baseless position,” Perryman said, “and how those harms could extend to all communities, frankly.”

There are others, Perryman noted. “The administration weaponizing the government against the rights of the American people and against LGBTQ people,” which has led Democracy Forward to challenge the firing of federal employees responsible for DEI, and the termination of Jocelyn Samuels from the U.S. Equal Employment Opportunity Commission, where she served as a commissioner and as such enforced anti-discrimination laws in the workplace including rules protecting LGBTQ people.

The organization is also in court fighting the administration’s effort to “prevent federal workers at National Guard facilities from being able to access bathrooms that correspond with their gender and their needs,” Perryman noted.

“Those types of matters that really involve the mechanics of the federal government and how it’s being weaponized against the American people, those are areas where Democracy Forward has had particular expertise and has been a core player,” she said.

The organization is active at the state and local level, too, including on matters that have “significant overlay with the LGBTQ community,” Perryman said. She pointed to lawsuits where, “We’ve sued on the decimation of the library sciences,” on behalf of the Institute of Museum and Library Sciences, important litigation given how state-level censorship has disproportionately targeted LGBTQ books, curricula, and speech.

Stronger together

“What I’m looking forward to as we move forward, I mean, this is a hard time, and it’s a hard time for the country,” Perryman said. “We know there’s a lot of fear.”

Reflecting on the resilience of LGBTQ people and communities specifically during Pride month, Perryman said, “what I’m looking forward to at our work at Democracy Forward is how we get to be alongside the people and communities in this country that even though they are afraid, and even though they are scared, they are making the choice to choose courage and to step forward and say, we can build some community together.”

“We see that happening in our work every day with all of these amazing plaintiffs and groups that we are representing,” she added. “While big, storied institutions are not standing up the way they need to, in this time, the American people really are and at Democracy Forward, we get a front row seat to that, which is a real honor.”

“As I think about the months ahead, which will be challenging, I’m just really looking forward to continuing to have a team that’s able to be there for people that in this time are choosing courage,” Perryman said.

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