On June 12, 2016, Omar Mateen murdered forty-nine people in a gay night club located in Orlando, Florida in what was to be identified as the Pulse massacre. Four years later June 12, 2020; the Office for Civil Rights (OCR) of the Department of Health and Human Services (HHS) issued a new final rule to dramatically revise the agency’s prior interpretation of Section 1557 of the Affordable Care Act (ACA), the law’s primary anti-discrimination provision. The new rule removes protections against discrimination based on sex stereotyping and gender identity afforded by the 2016 rule and allows for discrimination.
This is a purposeful and vindictive move on the anniversary of the Pulse massacre by the Administration to openly discriminate.
Background since 2016
Detail as taken from Harvard Law Review Blog beyond the leap . . .
Section 1557 of the ACA prohibits “discrimination on the basis of sex” among other characteristics by healthcare providers for access to either care or insurance. After the ACA was signed into law, the Department of Health and Human Services (HHS) tasked with enforcing the law, interpreted “sex” to include gender identity and termination of pregnancy. Subsequently from the interpretation by the HHS, several states and providers filed lawsuits challenging the interpretation.
The following is a brief history of how we arrived to what will be decided in SCOTUS eventually. Federal Judge Reed O’Connor is the same judge who struck down the ACA previously.
On December 31, 2016, Judge Reed O’Connor, in the U.S. District Court for the Northern District of Texas, granted a preliminary injunction to prohibit HHS from enforcing this rule against providers.
On January 21, 2017, a new administration under Republican President Donald Trump took office.
On May 2, 2017, the Department of Justice (DOJ) on behalf of HHS filed a motion for remand and stay pending reconsideration of the rule.
On April 5, 2019, the DOJ filed another motion informing the court that HHS no longer interpreted “sex” to include gender identity and thus did not oppose plaintiff’s challenge.
On February 1, 2019, the American Civil Liberties Union of Texas and River City Gender Alliance (ACLU) filed a motion to intervene to defend the lawfulness of the rule.
On February 4, 2019, Plaintiffs filed a motion for summary judgment seeking permanent relief in the form of a vacatur and permanent injunction.
On October 15, 2019, the court granted the ACLU’s motion to intervene but ultimately vacated the HHS rule. While the court had previously denied the ACLU’s motion to intervene, it found that once the DOJ had declined to defend the rule, the ACLU’s interest was “inadequately represented” and it therefore had the right to intervene. The court disagreed with plaintiff’s claim the ACLU could not intervene because it based its motion on inadmissible hearsay and did not have a “legally protectable interest.” The court did impose limits on intervention deciding that since intervenors were able to participate from early on, there was “no need for factual discovery” or “further briefing” and that such “reasonable limitations are necessary to avoid a further delay in litigation.”
Eventually Judge O’Connor granted summary judgment to plaintiffs, finding that the HHS rule was unlawful.
Finally, Judge O’Connor decided to grant a vacatur (to set aside a judgment) of the rule rather than issue a permanent injunction. While the plaintiffs had asked for both, Judge Reed O’Connor determined that issuing a permanent national injunction would be an overcorrection and that a vacatur of the rule afforded the plaintiffs proper relief under APA guidelines. If you recall, Judge Reed O’Connor had struck down the entire law, ruling the ACA’s individual mandate was no longer a tax (because Congress had eliminated the penalty) and it was inseverable from the remainder of the law. The ruling is currently on appeal before the Fifth Circuit.
Critics of O’Conner’s decision find the decision lacks the foundation as he did not find any provision of the law to be unconstitutional.
Dean and Professor of Law at the UC Berkeley School of Law Erwin Chemerinsky :
“O’Connor did not find any provision of the law unconstitutional. Instead, he said Congress’ repeal of the tax made the rest of the law unconstitutional because it likely would not have been adopted without the enforcement mechanism for the individual mandate. O’Connor wrote that by revising the law in 2017, Congress “sawed off the last leg it stood on . . . The court finds the individual mandate ‘is essential to’ and inseverable from ‘the other provisions of’ the ACA.”
Severability analysis does not apply at all because no part of the law was declared unconstitutional. I cannot think of any precedent for the proposition that Congress, by choosing to repeal a small part of a law, creates a basis for holding the entire statute unconstitutional.”
On Friday (June 12), the Trump Administration with malice released a set of guidelines dictating that discrimination against L.G.B.T. people in health care is not forbidden. Four years prior on the same date, Omar Mateen murdered forty-nine people in a gay night club located in Orlando, Florida in what became known as the Pulse massacre. The guidelines comes days (or a week or two) before the Supreme Court is expected to release its ruling on whether discrimination on the basis of sexual orientation or gender identity is illegal under Title VII of the Civil Rights Act.
The release of the guidelines is blatant and meant to alert the court as to what the Administration (Trump) wishes the court to decide. The new guidelines reverse a rule, put in place by the Obama Administration in 2016 banning health-care providers from discriminating on the basis of gender identity or whether a patient had sought an abortion. The Obama-era rule was immediately challenged in court (see above) and still has not taken effect. The new guidelines serves only to put an end to the legal battle, draw attention to the issue, and reverse the HHS rule (claiming it lacked the authority to implement it in the first place).
In an ugly hateful, and discriminatory manner; the Trump Administration is attempting to influence the outcome of a case to be decided by SCOTUS.
The Trump Administration’s Hateful Message on Health Care for Transgender Americans, The New Yorker, June 2020.