Federal Judge Blocks LGBTQ Health Discrimination Rule

On August 17, 2020, Judge Frederick Block of the U.S. District Court for the Eastern District of New York blocked the Department of Health and Human Services (HHS) from implementing a rule that allowed health-care providers and insurers to discriminate against LGBTQ people.

The decision prevents HHS from rolling back the Obama-era regulatory definition of “on the basis of sex” under Section 1557 of the Affordable Care Act, which categorizes sex stereotyping and gender identity discrimination as discrimination on the basis of sex.

The proposed rule changed the definition of sex under Section 1557 of the Affordable Care Act to exclude gay and transgender people, the interpretation of which could be used to deny care to LGBTQ patients. The Director of HHS’s Office for Civil Rights, Roger Severino, had argued that the new interpretation of the health-care rules would align with what lawmakers originally intended. In a statement in June, HHS said it believed anti-discrimination provisions should apply only to “male or female as determined by biology” and the change was part of a broader effort to eliminate “costly and unnecessary regulatory burdens.” HHS finalized the regulations in June, three days before the Supreme Court ruled in Bostock v. Clayton County that federal nondiscrimination protections “because of sex” include gay and transgender employees.

Several civil rights groups, including the National Employment Lawyers Association, opposed the new regulations and the Trump Administration’s broader attack on reproductive and sexual rights.

In Judge Block’s 26-page order, he states that the proposed HHS rule is contrary to the decision reached in Bostock. HHS thus acted “arbitrarily and capriciously in enacting” the rule, as the agency finalized it without addressing the impact of the Supreme Court’s decision in Bostock. Judge Block’s decision marks a major victory for LGBTQ rights and delivers a serious blow to the Trump Administration’s ongoing efforts to roll back a series of protections for the LGBTQ community.